
Book i il '\ I ^ 



OFFICIAL UONATION, 



ALASKAN BOUNDARY TRIBUNAL. 



THE 



ARGUMENT OF THE UNITED STATES 



BEFORE THE 



TRIBUNAL CONVENED AT LONDON 



UNDER THE 



PROVISIONS OF THE TREATY BETWEEN THE UNITED 

STATES OF AMERICA AND GREAT BRITAIN 

CONCLUDED JANUARY 24, 1903. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1903. 



IV CONTENTS. 

NINTH. 

Page. 

Fifth, sixth, and seventh questions submitted for decision 61 

The "coast" referred to in the treaty, to which the mountains were to be 
parallel, and to the sinuosities of which, if the mountains failed, the line 
was to be drawn parallel, was the coast of all the interior waters, such as 

Taku Inlet and Lynn Channel 65 

The meaning of the word "cote" as understood by the parties prior to 

the negotiation of the treaty of 1825 66 

The meaning of "coast" as defined in the ukase of September 4, 1821. . 66 
The understanding of the United States and Great Britain that the 

ukase api^lied to the entire (joast 68 

Claim of Great Britain to northwest coast 70 

Claim of United States to northwest coast 71 

Beginning of the negotiations 72 

Negotiations of the treaty of 1825 did not proceed upon strict right, but 

upon considerations of mutual expediency 72 

The motives which actuated the parties were the advantages to be 
secured from controlling the rights of fishing and liunting and of trade 
with the natives along the coast, and the question of territorial sover- 
eignty was directed toward securing these rights and not merely 

dominion over an extent of land 73 

Certainty was desired in the treaty and the prevention of any disagree- 
able discussion in the future 75 

The meaning of ' ' cote ' ' as shown by the negotiations 76 

The first suggestion as to a line 76 

The second suggestion as to a line 76 

The third suggestion as to a line 77 

The first formal proposal of Sir Charles Bagot 78 

Contre-projet l)y Russia 78 

Amended proposal by Sir Charles Bagot 79 

Final proposition of Sir Charles Bagot 82 

Final decision of Russian plenipotentiaries 82 

Analysis as to the use of the word "coast" in the draft convention sub- 
mitted by Mr. Canning 85 

The final negotiations 92 

The meaning of "coast" in Article VII of the treaty of 1825 94 

Conclusion of the negotiations 95 

Crete des montagnes 99 

The contention of the United States is that the negotiations did not 
mean "the mountains next the sea," but mountains other than those 
next the sea, and which constituted a chain separated from the sea 
by intervening mountains which they intentionally rejected, and that 
they did not contemplate individual mountains whose summits were 
to be connected together, or even short ranges, which have a trend 
across the line of coast of such waters as Taku Inlet and Lynn Canal, 
bxit a generally continuous range of mountains supposed to begin near 
the head of Portland Canal and to continue with a general trend 
l^arallel with the coast, around the head of Lynn Canal, and that the 
assumption of the existence of such a range and the agreement in refer- 
ence to it was subordinate to and in harmony with the fundamental 
postulate that "coast" meant all of what could be included by that 
term and not anything less, to wit, all of the northwest coast of 
America north of 5-1° 40^ over which Russia had claimed jurisdiction. . 99 



CONTENTS. V 

Fifth, sixth, and seventh questions — Continued. Page. 

Crete des montagnes — Continued. 

The maps accessible to the negotiators showed a well-defined mountain 

chain 101 

The character and identity of the mountains as shown l)y the negotia- 
tions and treaty 106 

The evidence of the maps issued after the treaty as to what mountains 

were meant by the treaty 120 

The Stikine River: 

Dryad affair 123 

Surveys of the Stikine 125 

Hunter survey and Peter Martin affair 129 

Such mountains as those contemplated l>y the treaty do not exist within ten 

marine leagues of the ocean 134 

It was never the intention imder the treaty to draw the line along the sum- 
mits of disconnected peaks, and it is impossible, on the British theory, 

for any tribunal to determine which of such peaks shall be chosen 135 

From the treaty of 1825 to the treaty of 1867, the understanding manifested 
by Great Britain, Russia, and the civilized world at large was, that it was 
"the intention and meaning of said convention of 1825 that there should 
remain in the exclusive possession of Russia a continuous fringe or strip of 
coast on the mainland, not exceeding ten marine leagues in width, separ- 
ating the British possessions from the bays, ports, inlets, havens, and 
•waters on the ocean and extending from the said point on the 56th degree 
of latitude north to a point where such line of demarcation should inter- 
sect the 141st degree of longitude west of the meridian of Greenwich"... 139 
Assertion of claim by Russia bj' its official maps to all interior waters 

and their coasts 139 

The official maps of Great Britain and Canada showed their under- 
standing that Russia owned all of the interior waters and coasts now 

in controversy 141 

The understanding as shown by the maps of Russia and of Great 
Britain was of general acceptation by all cartographers, and the decla- 
rations of the official maps of Great Britain were continued with the 

knowdedge of this understanding 142 

Russia showed by her occupation and exercise of sovereignty over the 
waters and coasts in dispute that she claimed them as within her ter- 
ritory, and Great Britain never, down to the sale by Russia to the 
United States, attempted to assert any jurisdiction over such waters 
or coast or to occupy them in any way or to question the sovereignty 

of Russia over them 144 

From 1840 to the American purchase the Hudson's Bay Company held 
all of the waters and coasts in dispute for Russia. This holding was 
begun and continued with the knowledge and consent of Great 
Britain, which thereby indicated that she understood that under the 

treaty of 1825 they were to belong to Russia 146 

The United States purchased Alaska with the understanding on its part and 
with a knowledge of the understanding indicated by the conduct of Great 
Britain that Russia under the treaty of 1825 owned all of the waters and 
coasts now in dispute, and has held them with that understanding without 
any protest from Great Britain down to the beginning of the present con- 
troversy . . -J, 150 

The American purchase 150 

American occupation 151 



VI CONTENTS. 

Fifth, sixth, and seventh questions — Continued. Page. 

American occupation — Continued. 

By Army and Navy 151 

Under revenue officers 156 

Under civil government — _ 1 157 

Schools and missions 159 

Reports of governors of Alaska 159 

United States census 161 

Post-otfice 162 

United States maps 162 

British and Canadian maps after 1867 162 

The Dawson map of 1887 163 

Nothing was done on the part of Great Britain until 1898 indicating a claim 
contrary to the understanding which she had prior to that time mani- 
fested that Russia, under the treaty of 1825, was owner of all the waters 
and coasts now in dispute and that the United States had, under the treaty 
of 1867, ac(}uired all of them from Russia, and nothing has ever been done 

by the United States indicating a contrary understanding 165 

Propositions to survey 165 

Negotiations for delimitation of boundary begun in November, 1872 . . . 166 
Survey of Stikine River by Hunter and adoiition of provisional line in 

1878 173 

The Dall-Dawson conference, 1888 175 

Attention called in 1887 to Schwatka's reconnaissance of 1883 186 

White Pass Trail, 1888 187 

So-called protest of 1891 190 

The convention of July 22, 1892 192 

The instructions of Dr. ]\Iendenhall, 1898 193 

Dyea and Skagway, and alleged protest 196 

Acquiescence 201 



ARGUMENT OF THE UNITED STATES. 



FIRST 

STATEMENT. 

In 171)9 the Czar of Russia issued an Ukase granting- to the 
Russian American Compan}- certain privileges, and jurisdiction over 
the northwest coast of America, down to the 55th degree of north 
latitude. 

On September 4, 1821, an Ukase was issued by which Russia 
claimed exclusive sovereignty over the northwest coast of America 
down to the 51st degree of north latitude, and also over one 
hundred miles of the Pacific Ocean, which washed the islands, 
and the mainland of the northwestern coasts of America. This 
Ukase was intended to protect and enlarge the privileges of the 
Russian American Companj", which had been granted by the Ukase 
of 1799, the chief of which w^as the exclusive right of hunting and 
trading for the pelts of animals in that territory. 

The Ukase of vSeptember 4, 1821 extended the limits to the 51st 
degree, and in addition, prohibited the navigation of the Pacific 
Ocean to the subjects of all other nations, within one hundred 
miles of such islands and coasts. 

Protests were ^jromptly made by the United States and Great 
Britain. 

Negotiations were begun in 1821, which terminated in a treaty 
between Russia and the United States in 1824 and a treaty between 
Russia and Great Britain in 1825. The treaty of 1825 between 
Great Britain and Russia, among other things, delined a line sepa- 
rating the Russian from the British possessions as follows: 

III. La ligne de demarcation entre les Possessions des Hautes Parties Contractantes 
sur la ci'ite du continent et les lies de I'Amerique Nord-ouest, sera tracee ainsi qu'il 
suit: 

A partir du point le plus meridional de File dite Prince of Wales, lequel Point se 
trouve sous la parallele du 54me degre 40 minutes de latitxide Nord, et entre le 131me 

3 



4 ARGUMENT OF THE UNITED STATES. 

et le 133me degre de longitude Guest (Meridien de Greenwich), la dite ligne renion- 
tera au Nord de long de la passe dite Portland Channel, jnsqu'au Point de la terre 
ferme ou elle atteint le 56me degre de latitude Nord: de ce dernier point la ligne de 
demarcation suivra la crete des montagnes situees parallelement a la Cote, jnsqu'au 
point d' intersection du 141me degr^ de longitude Guest (meme Meridien); et finale- 
ment, du. dit point d'intersection, la nieme ligne meridienne du 141me degre for- 
mera, dans son prolongement jusqu'a la nier Glaciale, la limite entre les Possessions 
Russes et Britanniques sur le Continent de TAmerique Nord-ouest. 

IV. II est entendu, ]iar rapport a la ligne de demarcation detenninee dans I'Artiele 
precedent: 

1. Que I'ile dite Prince of Wales appartiendra toute entiere a la Russia. 

2. Que partout ou la crete des montagnes qui s'etendent dans une direction paral- 
lele a la Cote depuis le 56""^^ degre de latitude Nord au point d'intersetion du 141°"' 
degr6 de longitude Guest, se trouverait a la distance de plus de dix lieues marines de 
I'Gcean, la limite entre les Possessions Britanniques et la lisiere de Cote mentionnee 
ci-dessus comme devant aj^i^artenir a la Russie, sera form6e par une ligne parallele 
aux sinuosites de la Cote, et qui ne pourra jamais en etre eloignee que de dix lieues 
marines. 

In 1867 a treaty was entered into between the United States and 
Russia, by which the United States purchased from Russia all of 
its possessions upon the Northwest coast of America, to which was 
^iven the name of Alaska. In this treaty the cession by Russia 
was described in the identical language used in the treaty of 1825 
between Russia and Great Britain, to define the boundary line 
between their respective territories. 

The country from the 56th parallel to Mount St. Elias, throug-h 
which the boundary line was to be drawn, had not been explored, 
but it was known to be mostly barren, and composed generally of 
snow capped mountains with many large glaciers intervening. This 
strip of territory was washed by the Pacific Ocean, which indented the 
coast with many bays and inlets, in which the tide ebbed and flowed. 
The boundary line was never surveyed and marked by Great Britain 
and Russia. Russia claimed and exercised sovereig'nt}^ over all of 
the interior waters and their coasts. Great Britain never questioned 
such claim or jurisdiction, and never in any way indicated that she 
claimed any rights to an}^ of them. The United States in 1867, 
entered into possession of, and has exercised jurisdiction over, all 
of these interior waters and coasts to the present time. Proposi- 
tions have been made by Great Britain at different times, prior to 
1898, to survey and determine the line in the interior, but these 
propositions in no way suggested any question as to the sovereignty 



ARGUMENT OF THE UNITED STATES. 5 

over the bays and inlets and the coasts bordering them, all of 
which were in the undisputed possession of the United States. 

In 1892 the United States and Great Britain entered into a treaty, 
providing for a joint survey, for the purpose of marking the bound- 
ar}'. They obligated themselves in this treaty, to proceed as soon 
as practicable after the report, or reports, of the commissioners, to 
consider and establish the ])oundary line in question. It was pro- 
vided that a report should be made within two years after the first 
meeting of the commissioners. By a supplemental treaty of Febru- 
ary 3, 1894, the time was extended to December 31, 1895. 

Joint surveys were made, and a joint report was submitted Dec- 
ember 31, 1895, but it contained no recommendation for a settlement. 

The discovery of gold in 1896 in the Yukon territory attracted 
many persons to the Klondike District. The natural pathway for 
them was from the Pacific Ocean up through Lynn Canal over the 
Chilkat and Chilkoot passes and thence into the territory of Great 
Britain. Along this route thousands of miners passed. The ports at 
the head of Lynn Canal at once assumed large commercial importance. 
It was not until after this that any question was officially raised 
as to the boundar}" line between Alaska and Canada extending 
around the heads of the bays and inlets. Although individual 
citizens of Canada had, at times, advanced the theory that the 
treaty of 1825 should be so interpreted, as to run the boundary 
line along the summits of mountains claimed to be parallel to the 
general or mainland coast, and so as to leave the heads of the bays 
and inlets in British territory, such a claim was never put forward 
by Great Britain until 1898. 

After the failure to agree under the treaty of 1892, a Joint High 
Commission was constituted, for the adjustment of the boundary 
differences, which met in 1898 and 1899. 

The Marquis of Salisbury, in his instructions to the British 
High Commissioners July 19, 1898, said: 

From Portland Channel to Glacier Bay there is no such continuous range of 
mountains running parallel to the coast as the terms of the Treaty of 1825 
appear to contemplate. That Treaty, again, provides that the line should be 
parallel to the sinuosities of the coast, and that it should never exceed the dis- 
tance of ten leagues from the Pacific Ocean. Considering the number and size 
of the projections and indentations along the coast, it would be difficult to trace 
the boundary according to the Treaty. « 

«B. C. App., 298. 



6 AEGUMENT OF THE UNITED STATES. 

Thu.s he stated specitically that, there '"is no such continuous 
range of mountains running- parallel to the coast as the terms of 
the Treaty of 1825 appear to contemplate,-' and that ''considering- 
the number and size of the projections, and indentations along the 
coast, it would be difficult to trace the boundar}- according to the 
Treaty.'" Notwithstanding these official declarations, as to the moun- 
tains and the coast, a position was assumed by Great Britain, in 
direct conflict with them. A line was claimed, as shown b}' map 
28 of the United States Atlas, which put in British territory all of 
the inlets and almost all of the harbors and safe anchorages. It 
included much of the mining territory- in the Porcupine, Berners 
Bay, Juneau, Snettisham, Sumdujn, Windham Bay and Unuk River 
districts, whose mineral wealth for twenty years has been, without 
any question, exploited by citizens of the United States. It also 
included the towns of P3'ramid Harbor, Haines, Dyea, and Skag- 
way, all of them situated where the United States had exercised 
undisputed sovereignty since 18()7. 

An even more astounding feature of the claim was that the line 
was not laid down along any part of Portland Canal, but was drawn 
up Clarence Strait and thence through Ernest Sound to the conti- 
nent. The character of the contention put forward b}" Great 
Britain precluded all possibilit}^ of a settlement by the fJoint High 
Commission, and the two governments, by a treaty of March 3, 
1903, have, for the purpose of settling all differences, constituted 
this Tribunal, to whose decision seven questions are submitted. 

These questions will be discussed in their order, and the provi- 
sions of the treaty of 1893, which are thought to bear upon their 
solution, will be referred to in the course of the argument. 

SECOND. 

RULES OF CONSTRUCTION AND INTERPRETATION TO BE APPLIED TO THE 
TREATY OF 1825 BETWEEN GREAT BRITAIN AND RUSSIA. 

In the general principles by which treaties are to be interpre- 
tated is embodied the important distinction between "construction," 
the process through which the general sense of a treaty is derived 
by the application of the rules of logic to what appears iqDon its 
face, and "interpretation,"" the process through which the meaning 



ARGUMENT OF THE UNITED STATES. 7 

of particular terms is explained by reference to local circumstances 
and conditions the framers had in mind at the time. 

Jurists are ^enerall}' agreed in laying- down certain rules of con- 
struction and interpretation as being applicable when disagreement 
takes place l)etween the parties to a treat}^ as to the meaning or inten- 
tion of its stipulations. Some of these rules are either unsafe in their 
application or are of doubtful applicability; and rules tainted by any 
shade of doubt, from whatever source it may be derived, are unfit for 
use in international controversy." 

Since the time of Grotius, who devoted an entire chapter to the 
construction and interpretation of difficult and ambiguous terms, 
{De Jure Belli ac Pads^ ii. c, XVL), the system of rules 
which he founded has been revised and reproduced hy Puftendorf 
(V. c. XII), by Domat (Cushing\s Ed. 1, p. 108), by Vattel (ii, c. 
XVII.), and by Rutherforth (II, c. 7). The best parts of the 
work of each are embodied in Potter's Dwarris on Statutes and 
Constitutions, pp. 121-14:6, and also in Wildman's Institutes of Int. 
Law, I, pp. 176-186. These should be supplemented by the expo- 
sitions of Hefi'ter, Sec. 95; Phillimore, II, c. VIII; Calvo, Sees. 
713-77; Fiore, Sees. 1117-31; Hall, Sees. Ill, 112, and Savigny's 
exposition of "fundamental rules of interpretation" in his System 
des ILutigen Roinischen RechU (Vol. I, ch. IV., Sec. XXXIII). 

J^o publicist of recent times is more often quoted throughout the 
English-speaking world than William Edward Hall, who. after 
rejecting all rules of interpretation of doubtful authority, saj^s: 
"1. — When the language of a treaty, taken in the ordinary mean- 
ing of the words, 3delds a plain and reasonable sense, it must be 
taken as intended to be read in that sense, subject to the qualili- 
cations, that any words which may have a customary meaning in 
treaties, diflering from their common signification, must be under- 
stood to have that meaning, and that a sense cannot be adopted 
which leads to an absurdit}", or to incompati))ility of the contract 
with an accepted fundamental principle of law. * * 3. — When 
the words of a treaty fail to yield a plain and reasonable sense 
the}^ should be interpretated in such one of the following ways as 
may be appropriate: (a) B}^ recourse to the general sense and 
spirit of the treaty as shown by the context of the incou)plete, 

a Hall, Int. Law, p. 350. 



O ARGUMENT OF THE UNITED STATES. 

improper, ambio-uons or obscure passages, or by the provisions of 
the instrument as a whole. This is so far an exclusive, or rather 
a controlling method, that if the result afforded by it is incompati- 
ble with that obtained by any other means except proof of the 
intention of the parties, such other means must necessarily be dis- 
carded; there being so strong a presumption that the provisions of 
a treatv are intended to be harmonious, that nothing short of clear 
proof of intention can justif}" any interpretation of a single pro- 
vision which brings it into collision with the undoubted intention 
of the remainder.'"'" 

According to Calvo, Sec. 600 * * "The ambiguity of clauses 
is sometimes removed by keeping in mind the end which the parties 
had in view at the moment of the beginning of the negotiations, or 
by consulting the usages observed in the country most interested 
in the engagement entered into. 

You ma}^ also, in order to arrive at a harmonious conclusion, 
examine the facts, the circumstances which immediately preceded 
the signature of the agreement, referring to the protocols, the pro- 
ces-verbal, or to other writings addressed by the negotiators, exam- 
ining the motives or the causes which have brought about the 
treaty, — in a word, the reason of the transaction {ixitio legis); linally 
by comparing the text with other treaties, anterior, posterior or 
contemporary, concluded by the same parties in analogous cases. 

Sec. 601. All the articles of the treat}^ form an indivisible whole, 
which loses its consistency and value if one alters one of its parts; 
one should not separate the clauses, nor look at one of them in 
particular, on its own merits, without taking into account its cor- 
relation with those which follow or precede it. One stipulation 
may appear doubtful, ambiguous when each expression is taken by 
itself, which will appear clear, precise, altogether justifiable when 
you consider the accord of all the agreements of which it makes a 
part.^ 

The Supreme Court of the United States in the Marl'et Co. v. 
JIoffiiHin., 101 U. S., 115., has said: "We are not at liberty to con- 
strue any statute so as to deny effect to any part of its language. 
It is a cardinal rule of statutory construction that its significance 
and effect shall, if possible, be accorded to every word. As earh' 
as in Bacon's Abridgement, Section 2, it was said a statute ought, 

a Hall, Int. Law, pp. 350-355. ''Droit Int., 1, pp. 727-729. 



ARGUMENT OF THE UNITED STATES. 9 

upon the whole, to be .so construed that, if it can be prevented, no 
clause, sentence or word shall be superfluous, void or insigniticant." 

See to the same efl'ect United States v. Fishei% 109 U. 8.^ p. IJfO. 
In the eflfort to arrive at the original meaning of the parties to a 
contract or convention, their subsequent acts under it are of vital 
significance. In the Attorney General v. Druinnrond^ I Drury and 
Warren^ s Rejxtrts^ p. 368, it was said: '"Tell me what jow have 
done under such a deed and I will tell 3^ou what that deed means." 
In Insurance Company v. Dutcher, 95 United States, '273, it was 
said: ''There is no surer way to find out what parties meant than 
to see what they have done." 

When the rules for the construction and interpretation of treaties, 
as defined by the leading publicists of the world from Grotius to 
Calvo, have been carefully analyzed, it appears that there is cer- 
tainly a consensus of views as to the following: 

(1) As all the articles of a treatv constitute an indivisible whole, 
the primarj^ purpose of construction and interpretation is to extract 
from them, considered as a whole, the dominant intention or motive 
of the transaction, ''''la raison d^etre de Tacte {ratio legos)/' 

(2) While thus seeking for the motiv^e the court will, if neces- 
sary, put itself in the place of the parties and read the instrument 
in the light of the circumstances surrounding them at the time it 
was made and of the objects which they evidently had in view. 
Thus the court ma}^ "examine the facts, the circumstances, which 
immediately preceded the signature of the agreement, referring to 
the protocols, the proces-verbal, or to other writings addressed 
by the negotiators, examining the motives or the causes which have 
l)rought about the treaty, — in a word, the reason of the transaction 
(ratio /ef/is')." 

(3) In the eflort to arrive at the original meaning of the parties 
to a treaty or convention, great weight should be given to their 
subsequent acts under it. 

(4) Since the lawful interpretation of a contract ought to tend 
only to the discovery of the thoughts of the author or authors of 
that contract, as soon as we meet with any obscurity, we should 
seek for what was probably in the thoughts of those who drew it 
up and to interpret it accordingh'. This is the general rule of all 
interpretations. 

The contracting powers are obliged to express themselves in such 



10 ABC41TMENT OF THE UNITED STATES. 

a manner as the}' mutuall}' understand each other. If then, they 
ought to speak in such a manner as to be understood, it is neces- 
sary that thej' should employ the words in their proper significa- 
tion, in the sense which custom has given them, and that they 
should affix to the terms they use and to all their expressions, the 
received signification. They are not permitted to deviate with 
design, and without mentioning it from the common use, and pro- 
priety of the expression; and it is presumed that they have con- 
formed to it, while there are no pressing reasons to presume 
the contrary; for the presumption is in general, that things have 
been done as they ought. From all these incontestable truths 
results this rule: In the interjpretation of treaties^ pacts^ and prom- 
ises, ive ought not to deviate from the coinmon use <f the language^ 
at least, if we have not very strong reasons for it. 

Words are only designed to express the thoughts; thus the true 
signification of an expression in common use, is the idea which cus- 
tom has affixed to that expression. It is then a gross quibble to 
affix a particular sense to a word in order to elude the true sense 
of the entire expression. 

There is not perhaps an}^ language that has not also words which 
signify two or many different things, or phrases, susceptible of more 
than one sense. Thence arise mistakes in discourse. To employ 
them with design in order to elude engagements, is real perfidy, 
since the faith of treaties obliges the contracting parties to express 
their intentions clearl}-. 

We ought always to give to expressions tite sense most suitahle to 
the siihject, or the vadter to -which they relate, for we endeavor by 
a true interpretation to discover the thoughts of those who speak, 
or of the contracting powers in a- treaty. 

When one can and ought to have made known his intention we 
may take for true against him what he has sufficiently^ declared. 
As good faith ought to preside in conventions, they are always 
interpreted on the supposition that it actuallv did preside in them. 

The rule of interpretation forbids turning the sense of the words 
contrary to the manifest intention of the contracting powers. 

The connection and relation of things themselves serve also to 
discover and establish the true sense of the treaty or of any other 
piece.'* 

« Vattel's Law of Nations, Book II, Ch. 17, Sec. 268-286. 



ARGUMENT OF THE UNITED STATES. 11 

(5) The reason of the law. or, the treaty, that is, the motive which 
led to the making of it and the'view there proposed is, one of the 
most certain means of establishing the true sense, and great atten- 
tion ought to be paid to it, whenever it is required to explain an 
obscure, equivocal and undetermined point, either of a law or of a 
treaty or to make an application of them to a particular case. As 
soon as me certainly I'nov the reason which alone has determined the 
will of hint who xj)eal'>^^ v:e ought to interpret his u'ords and to apply 
them in a manner suitahle to that reason alone/' 

(6) The voice of equitj" requires that the conditions between the 
parties should be equal; this is the general rule of contracts. We 
do not presume to think, without very strong reasons, that one of 
the contracting powers has intended to favor the other to his own 
prejudice, but there is no danger of extending what is for the 
common advantage. If it then be found, that the contracting powers 
have not made known their will with sufficient clearness, and with 
all the precision required, it is certainly more conformable to 
equity to seek for this will in the sense most favorable to the 
common advantage and equality, than to suppose it in the contrary 
sense. ^ 

THIRD. 

EVIDENCE TO BE CONSIDERED. 

Under the title "'Russian Occupation" in the British Counter case, 
p. 66, it is said that: 

A large part of the case of the United States, and of the evidence contained 
in the Appendix thereto relates to the action of Russia, and subsequently of the 
United States in the region through which the boundary runs. 

This matter is, of course, introduced pursuant to the provision at the end of 
Article III of the Treaty under which the trilninal sits. 

After quoting from Art. 3, omitting the words "shall also." it 
proceeds : 

That clause requires the tribunal to 'take into consideration any action of the 
several governments, or of their respective representatives preliminary or subse- 
quent to the conclusion of said Treaties, so far as the same tends to show the 
original and effective understanding of the Parties in respect to the limits of their 
several territorial jurisdictions under and by virtue of the provisions of said 
Treaties.' % 

"Vattel's Law of Nations, Book II, Ch. 17, Sec. 287. ^Ibid., Sec. 301. 



12 ARGUMENT OF THE UNITED STATES. 

It is submitted that the position thus taken is unsound. It is 
founded upon an incomplete quotation which omits sig'niticant 
words. It ignores altogether the provision in Art. II., and the 
effect of Art. III., construed in connection with it, and invokes 
a rule altogether so narrow as not to have possibly been within 
contemplation. 

Art. II. provides that: 

Each party may present to the tribunal all jjertinent evidence, documentary, 
historical, geographical or topographical, including maps and charts, in its pos- 
session or control applicable to the rightful decision of the questions submitted. « 

Here the door is opened wide, with no limitation except that 
the evidence must be pertinent to the rightful decision of the 
questions submitted. 

Art. III. provides: 

The tribunal shall also take into consideration any action of the several gov- 
ernments or of their respective representatives preliminary or sulisequent to the 
conclusion of said treaties so far as the same tends to show the original and 
effective understanding of the parties in respect to the limits of their several 
territorial jurisdictions under and by virtue of the provisions of said treaties.'' 

This does not limit the provision of Art. II., but whether the 
Tri])unal might consider it pertinent or not makes it obligatory to 
also take into consideration any such action of the several govern- 
ments or of their respective representatives. Art. III. in like 
manner compels the Tribunal to consider the Treaties of 1S24, 1825 
and 1867. It has a discretion as to determining whether or not all 
other evidence introduced under Art. II. is pertinent. It has no 
such discretion as to that specified in the superadded provisions in 
Art. III. 

The British Counter Case assumes that Art. III. alone nnist be looked 
to, and that all of the evidence of the United States is introduced pur- 
suant to the provisions of that article. 

Art. III. obligates the Tribunal to consider certain evidence. It 
does not in any way restrict its discretion as to determining what 
other evidence is pertinent. The context shows that it was regarded 
that other evidence would be pertinent, and that in addition thereto 
the evidence particularized in Art. III. shall also be taken into consid- 
eration. The statement that Art. III. ""excludes all private action 

«U. S. C. App., p. 3. &U. S. C. App., p. 4. 



ARC4UMENT OF THE UNITED STATES. 13 

and, a fortiori^ all private expression of opinion, whether by map 
makers or others," is not supported. The pertinency and weight of 
such testimony are to be determined ])\^ the TribunaL It nui}' be of 
remote relevanc}' and of slight importance. The British Counter Case 
makes no specification except as to maps published b}- private map 
makers. Private map makers are historians of tlieir times. Their 
work is accepted or rejected according to its intrinsic merit and their 
reputation. If all of the map makers of the world throughout a long 
period of time agree to an interpretation of a treaty, and if it be 
assumed that such concensus was known to all enlightened govern- 
ments, then such governments are affected with knowledge of the com- 
mon understanding of the world. 

If with such knowledge of a common belief in respect of a mat- 
ter of sovereignty over the arms and inlets of the sea and their 
coasts in which all maritime nations and all powers having navies 
are directly interested, a government pul)lich" acts through a long- 
period of time so as to confirm such understanding, then such acts 
l)ecome more solemn than if they were made without the existence 
of an understanding. Such understanding shows that the mind of 
the world was on the question and that it deemed it of importance. 
If it had no thought abont it, then the acts of a government in 
regard to it, might be of no special interest and might escape 
notice. Such common understanding joined in b}- the government 
most interested, becomes a universally accredited historical fact. 
It cannot Ije said that such common understanding, not dissented 
from, l)ut confirmed, is not pertinent in considering the weight 
that should be given to the official maps of Great Britain. 

The British Counter Case further concludes that the action of the 
respective governments that can be looked to is limited to those 
inmiediately preliminary to the treaty." ^y hat has been said about 
the admissibility of evidence under xVrt. II. applies to this propo- 
sition. The Treaty should be interpreted in the light of the respec- 
tive attitudes of the parties when they began their negotiations. 
Tlieir relations to the sul»jectniatter of controvers}' should be known 
b}- the Tribunal in order to better understand the language used 
l)y them in settling the controvers}'. The rule invoked in the British 
Case is narrower than that which in the courts of Great Britain 

■■T ■ 

«B. C. C, p. 66. 
4574—03 2 



14 arc4UMp:nt of thp: united states. 

and the Ihiitcd States ^vould ai)i)ly to private litigants. Any court 
would admit evidence showing the attitude in which the parties 
stood toward the subject matter of contract. It is furthiU' said 
that: 

In addition, the understanding which the action must tend to show is that of 
'the Parties,' that is to say, of both Parties. Action by one Party not known to 
tlie other Party will nut tend to show this." 

If one party took action which showed that it understood that 
the Treaty meant a certain thing, and if the other party took action 
which showed that such party had tire same understanding, and if 
proof of such actions be made to the Tribunal it does not make a 
particle of diti'erence whether or not these separate acts of the sev- 
eral parties were known to the other party. If Great Britain had 
passed an Act of Parliament reciting that by the Treaty Kussia 
owned all of the interior waters and coasts in question, and had 
penalized any trespass upon them l)y British subjects, would it have 
made any difference as to the understanding of Great Britain of 
the Treaty that this Act was never known to Russia!' If there 
were such an act would the United States have to show that Russia 
knew of it, and assented to it l)efore it could be admitted in evi- 
dence? All separate acts of the parties tending to show their 
respective understandings are admissible. If they show the same 
understanding they are conclusive. It is only necessary to show 
knowledge upon the part of the other party where it is sought to 
set up assent or acquiescence, in such cases knowledge must he 
shown or the act must have such characteristics that knowledge of 
it must ])e assumed. 

FOURTH. 

TERKITOKIAL WATERS IN INTERNATIONAL LAW, 

DISTJXCTIoy BETWF.EX THE OVTER ASI> ISXER VOAST LISE. 

An eminent P^nglish publicist has said that "certain physical 
peculiarities of coasts in various parts of the world, where land 
impinges on the sea in an unusual maimer, require to be noticed 
as affecting the territorial boundary. Off' the coast of Florida, 
among the Bahamas, along the shores of Cu1)a, and in the Pacific, 
are to be found groups of numerous islands and islets rising out 
of vast banks, which are covered with very shoal water, and either 

«B. C. C, p. 66. 



ARGUMENT OV THE UNITED STATES. 15 

form a line more or less parallel with land or compose systems of 
their own. in both eases enclosing" considerable sheets of water, 
which are sometimes also shoal and sometimes relatively deep. The 
entrance to these interior bays or lag-oons may be wide in 
breadth of surface water, but it is narrow in navio-al)le water. To 
take a specific case, on the south coast of Cuba tlie Archipielago 
de los Canarios stretches from sixt}' to eighty miles from the 
mainland to La Isla de Pinos, its length from the Jardines bank 
to Cape Frances is over a hundred miles. * * * In cases of 
this sort the question whether the interior Avaters are. or are not, 
lakes enclosed within the territory, must alwa3's depend uj^on the 
depth upon the banks, and the width of the entrances. Each must 
be judged upon its own merits. But in the instance cited, there 
can be little doul)t that the whole Archipielago de los Canarios is 
a mere salt-water lake, and that the hoioidary of the land of ChIhi 
runs along the escterior edge of the haidi's." 

In the famous case of the Anna (50 Rob. Adm. 37M) Lord Stowell 
held that the extent of territorial waters must be estimated 
from the outer edge of the land represented in that case by 
certain low mud islands formed from the alluvial wash and 
debris of the Mississippi river, more than three miles from the 
Belize, the extreme point of the main land. ''It is argued," said 
Lord Stowell, "that the line of territorv is to be taken only from 
the Belize, which is a fort raised on made land by the former 
Spanish possessors. I am of a clifferent opinion. I think that the 
protection of territory is to be reckoned from these islands, and 
that they are the natural appendages of the coast on which they 
l)order, and from which, indeed, they are formed." 

It thus appears that from the aider coast l'rn<- of a maritime state, 
as defined in physical geograph}', is invariably measured under 
international law, the limit of that zone of territorial water gener- 
ally known as the marine league. The ])oundary of Alaska. — that 
is. the exterior boundar}' from which the marine league is 
measured. — runs along the outer edge of the Alaskan or Alexander 
Archipelago, embracing a group composed of hundreds of islands. 
When "measured in a straight line from headland to headland" at 
their entrances, Chatham Strait, Cross Sound, Sunnier Strait and 
Clarence Stsait, by which this exterior coast line is pierced, meas- 

«Hall, Int. Law, p. 129-130. 



16 ARGUMENT OF THE UNITED STATES. 

lire less than ten miles. That fact, according to the authorities 
quoted in the British Counter Case, pp. 24-28, places them within 
the category of territorial wator.s. All of the interior waters 
touching upon the Itniere, such as Behm Canal, Taku Inlet and 
Lynn Canal are, in the language of Hall, ^' lakes enclosed within 
the territory"', and as such are territorial waters, regardless of 
their widtli at their entrances when measured from headland to 
headland. 

DISTiyCTION BETWKEX THE COAST USE OE PHYSICAL (iEOGRAPHY FOR THE 
JTA'POSES OF nOUypARY. AXP THE POLITICAL COAST LIXE. FOR THE PUPPOSES 
OF .irpISDlCTIOX. 

riiysical geography simply reproduces the actual coast lines of 
maritime states, as they are defined by nature at the point of con- 
tact of the sea with the land. The following description of the 
coast of Maine, from an eminent geographical authority, may be 
taken as an apt illustration: 

(Jii tlie Atlantic coast Maine presents an uninterrnjjted succession of jienininlas, 
islands, and l)ays; and all these bays are the months of rivers — outlets of valleys 
having their origin far in the interior. Nothing similar is seen on all the terri- 
tory of the Union. One must come to Norway or go to the extreme point of 
South America to find so long a i)art of the coast — 400 kilometers in a straight 
line from the southwest to the northeast — so deeply cut up that we measure on 
it more than 4,000 kilometers of contact with the deep sea. All these bays of 
]Maine are also fiords, l)ut spacious, and which in s])ite of their equally rocky 
banks, of comparatively little elevation, feceive the morning and afternoon sun, 
as well as that of noon, and open to mariners mon; ports, more anchorages, and 
safe shelters than all the other coasts upon the three seas of the Union." 

It thus appears that the actual coast line of Maine, as known to 
pl\ysical geograi)hy, following as it must the sinuosities dehned by 
the contact of the sea with the land, is about 4,000 kilometers, 
while the political coast line, superimposed upon it by operation 
of international law, is vastly shorter h\ reason of the fact that 
the artificial and imaginar}' line cuts across the heads of bays and 
inlets. The natural coast line, as known to ph3'sical geograph}^, 
exists primaril}" for the purposes of boimdary. The artificial coast 
line, as known to international law, exists only for the purposes of 
jurisdiction. That obvious distinction is well illustrated by Rivier 

"See Maine, in Xourcau Dicliomiah-e de (U'ographie CnireraeJIe, Saint Martin, 
Vol. Ill, p. 559. 



ARGUMENT OF THE UNITED STATES. 17 

in his PrincijK'S du Droit des Gens. Speaking- of "Z^/ hir/- liffo- 
rc//t^," he s<\ys: "The name territorial sea is applied to all the seas 
or portions of the sea Avhieh belong to the territory: to tlie litto- 
ral sea, to the interior sea, in the various acceptations of this word, 
to gulfs and straits. It is the general and juridical term (/c- ftj-i/ic 
general et juridlque)., while the others are rather physical or geo- 
graphical (physiques on geograpJiiques). The term littoral sea has the 
advantage of a special meaning. The}^ say also jurisdictional sea, 
after one of the elements of the juridical situation of that part of 
the sea. 

The principle that the littoral sea forms a part of the territory is 
justiiied by the necessities of the preserA'ation and security of the 
state, from the point of view, military, sanitar}^, fiscal, as well as the 
point of view of the interests of industry, specially of the right of 
fishing. The result is, for the coast and for terra jirrna^ the littoral 
sea has the character of an accessor}^ (/(? caractere d-un accessoire) and 
it cannot be taken independently of the coast {hidejx'ndarninent de la 
cote). Speaking of '■^Les Front leres^' he says: "I have spoken alread}^ 
of the frontier on the sea, and of that of the land. There exists also 
special limits for the w^ants of administration because the geograph- 
ical and political frontier {!(( froidiere politique et geographiqufi) do 
not always answer in a sufficient manner."^' The distinction thus 
clearly recognized between a geographical and political frontier is too 
obvious to require further illustration. 

If the geographical frontier happens to be on the sea or ocean, it is 
known as the coast, the point of contact between the sea water and the 
land, upon which the political frontier is superimposed as an accessory 
that can not be taken independently of the coast {<d q\C on ne saurait 
T aequi'rtr independamment de la cote). That dependent and acces- 
sorial frontier created ])y international law, solelv for the purposes of 
jurisdiction, is annexed only to the oattr coast of a maritime state 
which it shortens by cutting across the heads of baj's and inlets, thus 
following what is called the general trend of the coast. 

THE POLITICAL COAST LIXE XOT IXVOLVED IX THIS CASE. 

The artificial coast line created by international law for the purposes 
of jurisdiction only, which, following the general trend of the coast, 

■ « Vol. I, pp. 145-146, 170. 



18 ARGUMENT OF THE UNITED STATES. 

cuts across the heads of bays and inlets is not involved in this case in 
any form, for the simple reason that tlie oiitti- coaxt, to which it is 
exclusively an accessory, is not involved. 

The entire British Case rests upon the admission that the eastern 
lioundary of the l!s!ere is to be determined with reference to the inner 
coast only, and on the contention that a political coast line can be pre- 
dicated of this coast. In the language of the British Case (p. 2-t), "It 
seems clear that, in the whole course of these negotiations, Count 
Nesselrode used the term "cote' as meaning the general line of the 
continent." The eastern line of the Jistert^ as now contended for by 
Great Britain is drawn in reference to "the general line of the con 
tinent," that is, of the inner coast. The heart of that contentionis that 
such inner coast is not the entire natural coast of physical geography, 
but that it is to be ignored at places and that for it shall be substituted 
an artiticial coast line which under international law is a mere accessory 
to a physical coast. Such an artiticial coast line relates to the outer 
coast onl}^, and can have no reference whatever to the inner coast line 
in question. The only coast with which we are dealing is the inner 
coast, the physical coast, the coast defined b}' the contact of the sea 
with the land. 

The result of the British claim that the line shall be drawn from 
headland to headland is that a i:)rinciple which became established in 
international law for the purpose of giving additional rights as inci- 
dent to the ownership is perverted to the purpose of determining 
what shall be considered coast. It could only apply where there was 
admitted sovereignt}^ over a coast line, and then only for the purpose 
of giving, by enlarging the jurisdiction beyond the actual coast, acces- 
sorial rights. It was never adopted and has never l)efore been applied 
for the purpose of determining the sovereignty over coasts. What 
was adopted as a shield for the protection of the coast is turned into 
an instrument for dissevering it. 

The British Counter Case (p. 28) quotes from Mr. Joshua Bates who 
in 1853 says : "This doctrine of the headlands is new." And yet it is 
sought to make it appear that the negotiators of the Treaty of 1825 
must have intended to apply it, for the purpose of determining what 
was "coast" as that word was used bv them. 



ARGUMENT OF THE TNITED STATES. 19 

FIFTH. 

FiKST Question. " Wind is nitcndrd (i>< the po'inf of conniK'ncement 
of the liner' 

On this question there is no eontrovers}-. The United States 
requests the tribunal to decide tliat Cape ^Muzon is the point of com- 
mencement. " 

In the British Case occurs the following- : 

But Great Britain concedes tliat it sutliciently appears tiiat Caj^e Muzon, the more 
southerly point, fultills the essential conditions of the Ti'eaty, and should l)e held to 
be the point of departure. '' 

SIXTH. 

St:coND Question: 117/^/^ chdniitl /.v the Poiit<iii(l CJumneJ!' 

Answer proposed by the United States: 

The United States requests the Tribunal to answer and decide that Portland 
Channel is the same body of water now commonly known and descriljed as 
Portland Canal, which, passing from the north between Ramsden Point on the 
mainland and Pearse Island, and thence southward of said island and Wales 
Island, enters Dixon P^ntrance between the island last mentioned and Compton 
Island. 

THE INTENTION OF THE NEGOTIATORS. 

Portland Channel, as the course of the lioundarv, tirst appears in 
the discussion in Russia's proposal of Feb. 1:^ 24, 1824. The line of 
demarcation starting* from Friiice of ^^ales Island Avas to ''follow 
Portland Channel up to the mountains which border the coast.'" ^' 
Russia had previously, on Oct. 2, 1S28, proposed the 54^ of latitude 
(Poletica to Nesselrode, Nov. 3, 1823).'' Sir C. Bagot had understood 
him to offer the So"" (Bagot to Canning, Oct. IT, 1823), '^ but the ques- 
tion had not been seriously discussed between them Ijecause, as stated 
by Sir C. Bagot, "" M. Poletica was not empowered to treat or, indeed 
to pledge his government to any precise point," and Sir Charles 
''abstained from entering with him as full}' into the matter" as he 
otherwise would have done. He also assigned as an additional reason 
for not advancing the negotiations that, in view of the position of the 
United States, he did not " think it safe to venture further into the 
question" until he had learned the opinion of His Majestv's Govern- 
ment upon the pretensions advanced by the United States. 

« U. S. Case, p. 104. 'U. S. C. App., 158. ^ U. S. C. App., 1:51. 

&B. C, p. 46. (?U. S. C. App., 1.39. 



20 ARGUMENT OF THE UNITED STATES. 

The pretoiisioiLs of the United States, as stated by Mr. Middleton 
to Sir C. Bagot are reported in the latter' ,s letter to Mr. Canning, 
Oct. 17 ^9. 1S1>8." to be that tiie United States had succeeded to all 
claims which Spain had to the northwest coast, and that as llussia 
had disclaimed all intention of interfering- with Spanish claims south 
of 61'^, "any ehiini of the coast lying between -i^"^ and 61° ought 
in strictness to l)e mside between the United States and Great 
Britain alone;" but that the United States was read}^ to acknowledge 
that no country had an}^ a))solute and exclusive claim to those coasts, 
and only intended to claim, as the heirs of the Spanish claims, that 
the United States had the liest pretensions as l)etween Russia, Great 
Britain and itself. 

An argument based on this claim was advanced by Sir C. Bagot, 
to show that Russia had recognized the superior claim of the United 
States to the whole coast; but this argument reacted and was 
turned against Great Britain later in the negotiations, when the 
United States withdrew l)elow 54^- 40' in favor of Russia under their 
treaty. 

Pending the resumption of the negotiations after the preliminary 
proposals of Sir C. Bagot and M. Poletica, the position of the 
United States had been more clearly detined and had given the 
territorial question "a new and complicated character."''' The 
Monroe doctrine had been announced and had furnished Great 
Britain "a conclusive reason for our not mixing ourselves in the 
negotiations'" between Russia and the United States. The treaty 
of 1S18, which was still in force, made it unnecessary for Great 
Britain to settle the boundary question at once with the United 
States, and an independent negotiation with Russia on the terri- 
torial question was therefore determined u})on. 

Such was the situation when Russia's proposal of the line through 
Portland Channel was first offered. Count IS'esselrode, in reporting 
the negotiation to Count Lieven, said of this proposal that — 

In order not to cut Prinre of ^yales Island, which, acconhng to this arrangement, 
would remain to Russia, we proposed to carry the sonthei-n frontier of our domains 
to latitude 54° 40^ and to make it ahut n])on the continent at Portland Canal, of 
which the opening into the ocean is at the same latitude as Prince of Wales Island. <' 

«U. S. C. App., 129. &IT. S. C. App., 144. ^T. S. C. App., 173. 



ARGUMENT OF THE UNITED STATES. 21 

Russia assumed the position that the boundary as a matter of rioht 
should not be above the 55^, because of the lease to that point of 
the Russian American Company. 

Sir C. Bagot took exception to the way in which this proposal was 
offered, in that Count Nesselrode seemed to intimate that it would be 
asking too much of the imperial dignity to require that pretensions 
advanced twenty-tive years ago by the Emperor Paul should now be 
renounced, l)ut he later recognized that this was an element in the 
situation which could not be disregarded; and finally took the 
responsibility upon himself of exceeding the limit of his instructions 
by offering to carry the line below 55- on the islands, because he 
felt that *• His Imperial Majesty might yet possil)ly feel an invin- 
cible repugnance to retract from the pretensions advanced by the 
Emperor Paul in the charter given to the Russian American 
Company in 1899.'' « 

His instructions had 1)een to carry the line to the southward only as 
far as the point opposite the southern ends of the island upon which 
Sitka stood, which was fixed upon the charts and was understood b}" 
Sir Charles to be about 56'^, and this was the boundary proposed b}' 
him in answer to Russia's first suggestion of Portland Channel. In 
making this proposal he stated in objecting to the line through Port- 
land Channel that it "would deprive His Britannic Majesty of sover- 
eignty over all the inlets and small bays lying between latitudes 56^ 
and 51- 15'.''* 

This expression is quoted in the British Case (p. 50) as authority 
for the statement that "the British understanding, communicated to 
and not questioned by Russia, was that Portland Channel entered the 
ocean in ol"-" 15'." 

A less superficial examination of the statement will disclose, how- 
ever, that it does not have the significance claimed for it 1)V Great 
Britain. In the first place the language is used in refusing to consent 
to Portland Channel as a boundary, and its exact location was there- 
fore of no immediate importance, and the reference to its location 
does not carry any presumption that it is used with special care or 
precision on the part of Great Britain. Neither, on the other hand, 
was Russia called upon under the circumstances to give any opinion 

as to the accuracy of the reference, and her silence on the subject 

^ : 

«U. S. C. App., 155. b u. S. C. App., 159. 



22 AKGUMENT OF THE UNITED STATES. 

raises no presiimi)tion of consent. That Count Nesselrode did not 
assent to 5-t^ 45' as li-xing- the point at which the line was to enter 
Portland Channel, is shown in his report of the proceedings above 
quoted, that *" we proposed to carry the southern frontier of our 
domains to latitude 54^ 40' and to make it abut upon the continent at 
Portland Canal, of which the opening- into the ocean is at the same 
latitude as Prince of ^^'ales Island. '' 

This statement is contained in his letter" to Count Lieven reporting- 
the conclusion on that same day of the treaty with the United States, 
fixing- the line at 54-^ 40', so that his reference to that line, in con- 
nection with the British negotiations, has special sig-niticance. 

In the second place the reference to 54-^^ 45' in Sir C. Bagot's state- 
ment was not necessarily intended to refer to the mouth of Portland 
Channel, and from the context it appears that an entirely different 
meaning is the more probal)le one. The reference to 54^ 45' is made 
in connection with the exclusion of British sovereignty over the inlets 
and small bays between that point and 5<!', and one of the reasons 
assigned for objecting to this is that the Russian-American Compan}^ 
possessed no establishments on the mainland between those parallels. 
It will be observed, therefore, that the latitudes 56^ and 54^^ 45' are 
mentioned as fixing two points on the mainland between which the 
Russian-American Company possessed no establishments, and there- 
fore 54° 45' was necessarily not intended to be the point at which the 
proposed Russian line should enter Portland Channel, which was not 
to be at the point of the mainland, but through the channel itself. 

Sir C. Bagot had distinctly so interpreted Russia's proposal in his 
amended proposal offered during- these negotiations '"in answer to 
the proposal made by the Russian plenipotentiaries, that the line of 
demarcation drawn from the southern extremity of Prince of Wales 
Island to the month <>f Portland CJiaunrt^ th'-nce vp the middh of 

this clHlJIItrl lintH it toilcjirx thr IH'l/lddnd^ r/t'."'* 

In this connection it is important to note that the Russian proposal 
did not tix the exact location of the proposed line l)y astronomical 
locations, but simph^ that it should "follow Portland Channel to the 
mountains," etc., so that Sir Charles Bagot's reference to 54- 45' was 
not intended as a correction of the Russian line. 

« U. S. C. App., 172. h U. S. C. App., p. \m. 



ARGUMENT OF THE UNITED STATES. 23 

The reference is of no value, therefore, for the purpose for which 
it is cited in the British Case, and the intention of neither the British 
nor the Russian negotiators as to what channel is Portland Channel 
can be predicated upon it. 

During this period of the negotiations no further progress was made 
toward an agreement upon the line through Portland Channel. Sir 
C. Bagot, as above stated, was limited by his instructions to the 56^ 
on the outer mainland coast for the southern limit, and sought to 
induce Russia to accept a line there l)y ofl'ering to carry it down on 
the islands to the lowest point of Prince of Wales Island, which was 
understood to be about 54- 40', thereby meeting the Russian recjuire- 
ments so far as the islands were concerned and which he hoped '" while 
it saved this point of dignity to Russia by giving to her the tifty-tifth 
degree of latitude as her boundary upon the islands, might preserve 
also uninterrupted our access to the Pacitic Ocean, and secure to His 
iSIajest}' the fifty -sixth degree of north latitude as the British boun- 
dary upon the coast."" 

Russia's position throughout the negotiations was unchanged, how- 
ever, and as pointed out in the observations submitted to Sir C. Bagot, 
was based upon the fact that the English establishments had a tendency 
to advance westward along the 53° and 54° and the Russian esta1)lish- 
ments to descend southward toward the 6o° and beyond. Therefore 
it was ''to the mutual advantage of the two Empires to assign just 
limits to this advance on both sides.'" before they conHicted, and "it 
was also to their mutual advantage to fix these limits according to nat- 
ural partitions, which always constitute the most distinct and certain 
frontiers, '''^^ and "For these reasons the plenipotentiaries of Russia 
have proposed as limits upon the coast of the continent, to the south, 
Portland Channel, the head of which lies about (par) the lifty-sixth 
degree of north latitude, and to the east the chain of mountains which 
follows at a very short distance the sinuosities of the coast. "^ 

The boundar}- thus proposed was based on broad principles and fol- 
lowed natural partitions, and the question of what point on the coast 
54^ 45' touched, which Great Britain seeks to determine by this negoti- 
ation, clearly had no place or consideration in the discussion. Certainly 
no distinction had been drawn between 54" 45' and 54 -^ 40', because the 

^' l\ S. C. App., 155-6. b u. S. C. App., 161. 



24 argump:]sit of the united states. 

latter point had not 3'et lieen niontioned in the discu.s.sion, ,so fur as the 
record shows. It is first mentioned in Count Nesselrode's report of 
the nejj'otiations quoted al)Ove. 

After showing- these general advantages of Portland Channel as 
forming a natural i)artition fultilling the requirements of the boundary, 
Russia further pointed out that on the other hand, unless the line was 
carried through Portland Channel, ^'the Russian establishments on the 
islands in the vicinity would have no support {pot id (Tappn!): that 
they would be at the mercy of the establishments which strangers 
might form upon the mainland, and that any such arrangement, far 
from being founded upon the principle of mutual accommodations, 
would but oti'er dangers for one of the parties and exclusive advantages 
for the other." " 

In Russia's iinal decision the British propositions were rejected on 
these grounds, and on the further ground ''that besides, according 
to the testimony of the most recent maps published in England, no 
English establishment exists either on the coast of the continent itself 
or north of the 54th degree of north latitude/" '' 

The negotiations therefore closed at this point for lack of authority 
on the part of the British Aml)assador to comply with the requii'ements 
of Russia below 56- on the mainland. 

In the British case the ol)servation is made on these negotiations 
that the tiftv-lifth pai'allel was the limit of the Russian claim and that 
any suggestion of carrying the line further south to 54- 40', was but 
local to the Prince of Wales Island.' 

It is true that 55^ was the line insisted upon by Russia but it must 
be remembered that this was insisted on, not as the most she claimed, 
but as the least she would take. She took occasion to point out and 
emphasize the fact during the negotiations that her claim to 55"-^ could 
not ))e (juestioned. that siie had at least equal rights with Great Britain 
])elow 55"-, that there were no English establishments approaching 
the coast above 53^ or 54-, and that those situated there had not yet 
reached the coast. There was, therefore, no question of encroaching 
upon British territory below 55^-, w-hich is the presumption suggested 
by the statement in the British Case above quoted. On the contrary, 
Russia regarded her attitude as a Avithdrawal northward from 51'-' 
rather than an extension southward from 55-. As Count Nesselrode 

« U. S. C. App., KU. '' U. S. C. App., 105. <B. C.,-57. 



AKGUMENT (^F THE UNITED STATES. 25 

expressed it, "Thus, we wish to Ixt-ep^ and the English companies wish 
to ohtatny ** 

Furthermore, there was another factor in the negotiations which had 
a controlling inlluence both on Russia and Great Britain in the tinal 
determination of the location of the southern line of the Usihw and 
which in itself interprets the intention of the negotiators on that 
point, and that was the Russian-American treaty. 

Concurrently with the British negotiations, Count Nesselrode had 
carried on the negotiations with Mr. Middleton, the United States 
Minister, and within three weeks after the suspension of the British 
negotiations, the treaty with the United States was concluded. 

It appears from Sir C. Bagot's letter of Apr. 5 IT, 182i, to Mr. 
Canning,'^ enclosing a copy of the convention with the United States, 
that ]\Ir. Canning was aware of its terms prior to sending his next 
instructions to Sir C. Bagot on the negotiations. Mr. Canning's next 
instructions, therefore, nuist be read in the light of this knowledge 
that Russia and the United States had agreed upon a line at 54^ 40'. 
The fact that the line w^as not a delimitation of possessions but only of 
settlements does not alter its importance as a recognition l)y the 
United States of the Russian authority down to 54- 40' north latitude. 

In reporting the situation to Count Lieven, with instructions to lay 
the matter before the British Government, Count Nesselrode, in his 
letter of Apr. 17, 1824, after showing that by his interpretation of the 
effects of the treaty of 1818 the titles of the United States to the 
possession of the territory of the northwest coast were as \'alid as those 
of England, says: 

Nevertheless, the Cabinet of Washington has admitted that our l)oun(Uu-y shouhl 
come down as far as 54° 40'. This has been admitted in a formal agi'eemtMit that we 
have just signed with its plenipotentiary, and the strengthening of our arguments is 
far from being the only result of this admission. <-' 

The preceding negotiations having ])een suspended as above shown, 
because Sir C. Bagot was not permitted by his instructions to cdVYj 
the boundary below 56- on the mainland, Mr. Cnnning opened his 
instructions at that point and authorized Sir Charles Bagot "to take 
as the line of demarcation, a line drawn from the southernmost point 
of Prince of Wales Island from south to north through Portland 
Channel, till it strikes the maiidand in latitude 56'^.""' 

__ «U. S.^. App., 173. cu. S. C. App., 174. 

6 B. C. App., 80. '' U. S. C. App., LSI. 



26 ARGUMENT OF THP: UNITED STATES. 

The.so instructions were sent as stated ))y him, "after full considera- 
tion of the motives which are alleged l)v the Russian g'overnment for 
adhering- to their last proposition." 

Mr. Canning had also read Count Xesselrode's letter to Count 
Lieven from which the extract quoted al)ove is taken, as appears by 
his letter of May '2'J, 1S24, to Count Lieven. 

In consenting to the line up Portland Channel, ^Ir. Canning had 
befoi'e him, therefore, Russia's final decision and arguments in support 
of it, iu which Portland Channel was proposed ])v name and without 
a single reference to astronomical locations, a))out which no questions 
had arisen, it l)eing merely described generally as offering a suital)le 
natural partition selected on the broad grounds of the mutual con- 
venience of ))oth sides; the United States-Russian Treaty fixing the 
line at .")4- 40' and Count IS^sselrode's statement that this admission by 
the United States that the Russian " boundary should come down as 
far as 54- 40' " was regarded as strengthening their arguments. By 
this be meant, of 'course, the arguments for the same boundary at 
54^^ 40' on the mainland with Gnnit Britain, for the boundary on the 
islands at that latitude had already ))een agreed to. 

It can hardly be questioned that under such circumstances Mr. 
Canning's assent to the line through Portland Channel contemplated 
carrying the line, to its entrance at least, along the 54-- 40' parallel, 
and that there was in his mind no doubt that its entrance would be 
found to coincide with that ])arallel. 

The boundary line through Portland Channel was not thereafter 
the subject of discussion in the negotiations; but the references to the 
Channel and the part that it plays in the l)oundary in the later 
negotiations settle ))eyond dispute the understanding of the parties 
that a line at 54^ 40' would run approximately thiough the center of 
the entrance of Portland Channel. 

Sir C. Bagot in reporting the later negotiations to Mr. G. Canning, 
Aug. 1:^. 1824,^' says that one of the points of difference was the per- 
petual liberty of navigation and trade along the coasts of the //'sicre. 
The //.s/r/v/ referred to was descril)ed in the proj30sed conventions 
before the negotiators in which the line started on Prince of A\^ales 
Island at 54- 40' and was then carried as follows: 

the line of frontier . . . shall ascend mirtherly along the channel called Portland 
Channel, etc. 

« U. S. C. App., 190. 



argump:nt of the united states. 27 

Sir C Bagot therefore understood the h'.<ie/'<^ to be bounded on the 
south by Porthmd Channel. 

Count Nesselrode, m reporting the same negotiations to Count 
Lieven in his letter of August 31, 1Sii4. referring to exactly the same 
subject, described the lislcre as the coast ''which extends from 59^ of 
north latitude to bV' 40'."" Later in the same letter he refers to 
this same latitude of 5-4- 40' as that to which the United States 
was confined t)y its treaty, and again later he says, "our counter 
draft carries our boundary from the 51^ to 54*-^ 40'. It leaves to 
the establishments wJjich the English companies may form here- 
after on the northwest coast all the territory situated to the south of 
Portland Channel.''* In this counter draft the southern boundar}' 
of the li.slere is carried through Portland Channel exactly as in 
the one referred to by Sir C. Bagot. Grouping these references 
together, they serye to emphasize the fact that the Portland Channel 
of the negotiations, which afterwards was carried into the treaty with- 
out change, was understood by Sir C. Bagot to ha the same Portland 
Channel which was tixed by Count Nesselrode as carrying at its 
entrance the line 54^ 40' and as the boundary to which Pussia had 
receded from 51^ in the United States treaty. It further appears that 
this letter of Count Nesselrode, in which this identilication of Portland 
Channel with 54^ 40' is made, was submitted to Mr. Canning and 
annotated by him, and so far as the references to Portland Channel 
are concerned, it was accepted by him without criticism or comment. 

11AH0X TUYLL'S LETTER. 

The British Case on page 56 quotes a suggestion from Baron Tuyll 
to Count Nesselrode, that the frontiers should be fixed at the 55th 
degree, "or better still at the southern point of the archipelago of the 
Prince of Wales and the Observatory Inlet, situated [j)lural] almost- 
under this parallel." 

This is relied on to show that the body of water whose mouth was 
opposite Prince of Wales Island was understood to be Observatory 
Inlet, and that consequenth^ they could not have meant that body of 
water when they designated that the line should run along Portland 
Channel. 

The argument seems to assume that l^aron Tuyll meant to say that 

the body of water designated as Observatory Inlet was opposite the 

k . 

« U. S. C. App., 200. &U. S. C. App., 2C4. 



28 ARGUMENT OF THE UNITED STATES. 

southern point of Prince of Wales Island, and on the same latitude, 
and that l)eeause the southernmost point of the island is about on the 
same latitude as the mouth of the l)ody of water which the United 
States contends was desiunuted by the name Portland Channel in the 
Treaty, it follows that such body of water could not have been meant, 
and that the contention of the United States is thereby overthrown. 
The conti-ary inference is to be drawn from what Baron Tnyll said. 
He was correct in statiiio- that the mouth of Observatory Inlet was 
about at the 55th parallel. Observatory Inlet was indicated on the 
maps of Vancouver and Arrowsmith, according- to the method of let- 
tering- used l)y cartographers, as a minor body of water flowing into 
Portland Channel at Rarasdens Point. This mouth falls directly under 
the 55th parallel. The end of the archipelago of Prince of Wales was 
shown on these maps to l^e at about 54"- 40'. 

He made a clear error when he said that the point of this archipel- 
ago was almost under the 55th parallel. When the parallel, giv^n by 
him as being the one at which Observatory Inlet was situated, is shown 
b}' the maps to coincide with the mouth of the bod}^ of water indicated 
on them as Observatory Inlet, why should we ignore his correct state- 
ment, and take his incorrect statement, as a Imsis for designating- a 
l)ody of water, which was not marlvcd Observatory Inlet, on the maps, 
and which even a cursory examination of the maps would have shown 
to be a number of miles south of the mouth of the body which, accord- 
ing to the name on the map and the latitude, he had correctly located? 

Therefore, his suggestion, so far from demonstrating that the Rus- 
sian plenipotentiaries understood Observatory Inlet to extend to Dixon 
Entrance, indicates just the contrary. At most, however, the state- 
ment could only show that Baron Tuyll understood that the body of 
water whose mouth was nearest opposite to the southernmost point of 
Prince of Wales Island was Observatory Inlet. If this was his idea, 
it does not follow that Count Nesselrode concurred in it. If he had 
concurred in it and had meant that ))ody of water, he would have called 
it Observatory Inlet instead of Portland Channel, for 54 4<>' was the 
latitude along whicli he certainly expected the boundary to run. Rus- 
sia first suggested Portland Channel, and it is not likely that he would 
have carried the line to a body of water further north without an}' 
pressure on the part of Great Britain (and none such appears to have 
been ))rought on this question), if Baron Tuyll had suggested Observa- 
tor}' Inlet as a proper l)ody of water, and he had understood that 



ARGUMENT OF THE UNITED STATES. 29 

Observatory Inlet was that Ijod}' which debouches nearly opposite the 
southernmost point of Prince of Wales Island. The better reasoning 
is that he understood that Baron Tuyll meant b}^ Observatory Inlet 
the Observatory Inlet marked on the map whose mouth was under the 
55th parallel, and that this body of water was not acceptable to him, 
tirst, because it was not on S-t'^ 40', and, second, because it did not 
debouch on the high seas, it being- desirable to have the line proceed 
up such a body of water. 

Whatever Baron TuylFs idea was, it is evident that his letter was 
not sufficient to charge Count Nesselrode with an}^ different under- 
standing of Portland Channel from the one consistently followed by 
him in the negotiations; and the date of the letter, which is October 
21, 1822, and prior to the commencement of the negotiations, shows 
that it is of no relative importance in interpreting the later under- 
standing of the parties. 

PHYSICAL GEOGRAPHY OF PORTLAND CHANNEL. 

The contention of the British Case is that ''The only canal known 
by the name of Portland at the time of the treat}^, had been surveyed, 
chartered, described and named b}^ Vancouver as Portland Canal, and 
is so called in the tirst edition of his book, but changed in the second 
edition to Portland Channel. The variation seems immaterial.'"'" 

This contention is based upon the statement in the British Case, 
p. 50, that Vancouver's Narrative was known to have been before the 
negotiators. In view of the fact that Vancouver's Narrative is not 
referred to anywhere in the negotiations by any of the negotiators, 
this statement calls for affirmative proof, but no evidence is offered in 
its support. On the contrary it appears in the negotiations as shown 
below that Vancouver's Narrative was not followed by the negotiators 
in the astronomical locations or in the geographical references, and it 
further appears that Vancouver's charts rather than his Narrative were 
the final expression of his conclusions and were so regarded by the 
cartographers who followed him. 

In the geography of Alaska the word "canal" has a local and 
special meaning. It signifies not an artificial channel, but a great 
arm of the sea, a fjord, or estuary. "Along the coast of Southern 
Alaska and British Columbia, submergence has led the sea far into 



* «B. C, p. 49. 



4571-03- 



30 ARGUMENT OF THE UNITED STATES. 

the valle^^s of the mountainous hig-hhmd.s. Some of the inner lon- 
gitudinal valleys, beyond the outer ranges, are now under water, 
forming- 'canals' of great value for coastwise navigation.''* 

Viewed as a whole the coast has a general trend in a northwesterly 
direction, but in detail it is very irregular, reaching back into deep, 
narrow fjords, and fringed by a mass of islands of all sizes. The 
fjords and straits are submerged valleys, both in line with and trans- 
verse to the general direction of the mountain ranges. Of the fjords. 
Dr. G. M. Dawson writes: "Their width is usually from one to three 
miles, their shores rocky and abrupt, and rising towards the heads of 
the longer fjords into mountains from fi,000 to 8,000 feet in height." 
As an illustration reference may be luade to Lynn Canal, named and 
charted ]\v Vancouver, which is a fjord, or estuary, embracing about 
388 square nautical miles, and terminating in the two inlets named 
respectively Chilkat and Chilkoot. 

When viewed from the standpoint of its geological origin and 
formation, the term Portland Canal should likewise be applied to the 
entire body of water emljraced within the continental shores between 
Point Ramsden and the open sea, and terminating in the two inlets 
generally known as Portland Canal and Observatory Inlet; such entire 
body of water embracing about 287 square nautical miles, being 
dotted by many islands, the larger of which are Pearse, Wales, 
Somerville, Fillmore, Sitklan, Kamiaghunut, Compton, Truro, and 
Tongass. That Vancouver regarded the entire "arm of the sea," or 
estuary, as above described, as Portland Canal is plainly indicated bj' 
the following: "In the forenoon we reached thut arm of the sea whose 
examination had occupied our time from the 2Tth of the preceding to 
the 2nd of this month. The distance from its entrance to its source 
is about 7o miles, which, in honor of the noble family of Bentinck, I 
named Portland's Canal.* 

Here is a clear and exact statement that the "arm of the sea " named 
"Portland's Canal" was the body of water traversed between the 27th 
of July, — on the morning of which he was in Observatory Inlet, 
"about twelve miles to the southward of the ships" (which were then 
in Salmon Cove) — and the 2nd of August, in the evening of which he 
was in Nakat Inlet where, to use his own words "our hopes vanished 

ff From Prof. Win. M. Davis, in tlie International Geography, p. 667. 
''B. C. App., 145. 



ARGUMENT OF THE UNITED STATES. 31 

by our arriviiiu;- at the head of the arm where it terminated in a small 
fresh water lirook flowing from low marshy ground in latitude 54" 56', 
longitude 221>-^ 28'/' It thus appears that the journey, during which 
Vancouver traversed a l)ody of water named b}' him Portland's Canal, 
began at least thirteen miles from the passage so entitled in the Brit- 
ish Case and ended at Nakat Inlet, at least J) miles therefroin. 

That Vancouver regarded "Observatory Inlet" merely as a "branch '' 
of this ""arm of the sea,"" is made clear by the following: "^Nothing 
of any note having occurred during my absence, I shall conclude this 
chapter by the insertion of the astronomical and nautical observations 
made at this place, and in consequence of our having been so fortunate 
as to be able to obtain those that were essential for correcting our 
former survey, and for future regulation in that respect, this hmnch 
obtained the name of Observatory Inlet and the cove where the ves- 
sels were stationed that of Salmon Cove, from the abundance of that 
kind of fish that were there taken,"" 

The British Case, p. 50, correctly states that '"As to the greater 
part of the length of the Portland Channel above shortly described, 
there is not, and could not be, any dispute. Reference to the 
charts will show that, at any rate, that portion of the westerly 
water which extends inland from the upper end of Pearse Island 
to the head of the channel marked 'Portland Canal' must be 
comprised in Vancouver's Portland Canal. And this is the common 
case of both sides. The dispute is as to the remainder of the 
channel." That is to say, the matter which remains in dispute is 
this: Is Portland Channel, below the point of agreement, that bod}^ 
of water which goes '"seaward between Pearse, Wales, Sitklan, and 
Kannaghunut Islands on the east and south, and the continental shore, 
Fillmore and Tongass Islands on the west and north;" or is it that 
body of water which goes seaward '""between Pearse Island and the 
peninsula, passes Ramsden Point, in (or at the entrance of) Observa- 
tory' Inlet, and reaches the ocean b}' the channel between Pearse and 
Wales Island on the west, and the easternly continental shore, enter- 
ing the ocean between Point Wales on the west and Point Maskeljme 
on the east." 

At this stage of the argument it will be helpful to contrast, with 

the aid of physical geography, the relative volume of the two bodies 

% '■ 

«B. C. App., 146. 



32 AKGUMENT OP^ THE UNITED STATES. 

of water competing for the title of Portland Channel, from the point 
of agreement to the open sea. The channel contended for b}^ Great 
Britain i.s in length twenty-eight nautical miles; of an average width 
of O.T() of a nautical mile; and of an average depth of sixty-four 
fathoms. This channel is at two points narrowed to a width of aV>out 
two hundred and tifty metres (about an eighth of a mile), the result 
of which is a choking of the waters passing through it, in its tidal 
action, to such an extent that about ninety per cent of the tidal flow 
is through the channel contended for by the United States. 

The channel contended for l)y Great Britain, between Wales 
passage and Tongass passage, is foul ground, and the most ordinary 
prudence would forbid its navigation. The best evidence of that 
fact is to be drawn from Vancouver himself who tells us in his 
narrative that even when he was making his wa}^ to the sea Ijy the 
channel in question he passed to the northward and westward of 
Fillmore Island instead of proceeding directly across the foul ground, 
thus avoiding five miles of the channel now embraced in the British 
contention.^' Vancouver ])uts it beyond all doulit that at no time, 
either before or after his boat exploration, did he ever venture to 
enter with his ships into the channel in question. Certainly he 
was but little impressed with either the value or importance of the 
smaller channel, because after he had completed his exploration of 
it, he said, in the evening of August 2, 

This disappointment occasioned us no small degree of mortification, since we had 
already been absent from the ships a whole week, with the finest weather the sea- 
son had yet afforded; and though our utmost exertions had been called forth in 
tracing the continent through this labyrinth of rocks we had not advanced more 
than thirteen leagues in a right line from the ships to the entrance of this inlet, and 
that in a southwest direction; very different from the course we could have wished 
to have pursued. It was also now evident that we had the exterior coast to contend 
with and from the length of time we had been indulged with fine weather, we could 
not reasonably expect its continuing much longer; indeed the appearance of the 
evening indicated an unfavorable alteration which made me apprehensive that 
probal)ly the finest part of the season had been devoted, in our late pursuit, to a 
very perplexing object of no great ralue or consideration. 

The channel contended for by the United States is likewise twent}'- 
eight nautical miles in length; of an average width of 2.58 nautical miles; 
and of an average depth of two hundred and eighteen fathoms. The 
volume of water contained in that channel is therefore about eleven 

"Vancouver's Narrative, Vol.11, pp. 343-345. 



ARGUMENT OF THE UNITED STATES. 33 

and a half times as great as that contained in the channel advocated in 
the British contention. According to the statement of Vancouver, 
made when he entered the larger channel, '" its entrance is not more 
than two miles and a half across""; and later on he says "no bottom 
was however gained after passing that point (speaking of Point 
Maskelyne), with sixty and seventy fathoms of line." It appears not 
only from his nai'rative but from the charts of Vancouver that he 
navigated with his ships the larger channel, up to the junction with 
Observatory Inlet, both in and out. 

The reason is thus stated by Vancouver himself: "The route b}" 
which the vessels had advanced to Salmon Cove, being infinitely 
better for them to pursue towards Cape Caamano, than the intricate 
channel through ichich I had passed in the hoats, we weighed with the 
intention of directing our course thus about six in the morning of 
Saturday the 17th; but having a strong gale from the southward, we 
made little progress windward."" And 3"et despite the natural and 
cogent presumption that a trained navigator and cartographer would 
have given the name of the channel to the real and navigable one. 
in preference to an almost unnavigable one. which he desci'ibed as 
"of no great value or consideration," the British Case assumes the 
burden of pro\'ing the contrary by means of the Narrative and maps 
of Vancouver himself. 

EVIDENCE OF THE CARTOGRAPHERS. 

During' the progress of the negotiations specific references were 
made to the following maps and charts. Sir Charles Bagot in his 
letter of August lU (31), 1823, to Mr. Cx. Canning said: 

I am not, however, quite sure that I aui right in this last assertion, as the Rus- 
sian Settlement of Sitka, to which I am told that the Russian Government pre- 
tends to attach great importance, is not laid down very precisely in the Map 
published in 1802 in the Quartermaster-General's Department here, or laid down 
at all in that of Arrowsmith, which has been furnished to me from the Foreign 
Office. 

Sir Charles Bagot in his letter of October IT (20), 1823, to Mr. 
G. Canning, said: 

I then gave him to understand that the British Government would, I thought, 
be satisfied to take Cross Sound, lying about the latitude of 57i° as the boundary 
between the tw^j Powers on the coast, and a meridian line drawn from the head 

''' Vancouver's Narrative, vol. IV, p. 202. 



34 ARGUMENT OF THE UNITED STATES. 

of Lynn Canal, a.s it i8 laid down in Arrow.smith's last map, or al)out the one 
hundred and thirty-tifth degree of west longitude, as the boundary in tlie inte- 
rior of the continent. 

Mr. G. Canning- in his letter of Janiuir^'^ 15, 182-i, to Sir C. Bagot 
said: 

The most southern establishment of Russia on the northwest coast of America is 
Sitka, which is not laid down in our latest maps with suthcient exactness, but which 
appears by the Russian map published in 1802 to be situated, as the inclosed copy of 
a letter from Mr. Pelly, chairman of the Hudson's Bay Company, also represents it, 
in latitude 57°, and not (as the map of which a copy was inclosed to your Excellency 
indicates) on the continent, but on a small island of the same name at the mouth of 
Norfolk Sound; the larger islands contiguous thereto, forming (what is called by 
Vancouver) Kinge George's Archipelago, are separated from each other by a strait 
called Chatham Strait, and from the mainland l)y another strait, called Stephen's 
Strait or passage." 

Mr. Canning will perceive by the inclosed Russian Chart (copied from Vancouver's 
survey) that the Russian settlement of Sitka is on a small island they have so named 
in the mouth of Norfolk Sound and in latitude 57° 5^ N. The great island contigu- 
ous to it is named by Vancouver "King George's Archipelago," and the strait which 
separates it from another island (Admiralty Island) is named "Chatham Strait." ^ 

In the Hudson's Ba^^ Company's letter to Mr. G. Canning (No. 
40), dated London, January 16, 1824, 

Mr. Pelly presents his compliments to Mr. Secretary Canning, and, as in the 
conversation he had with Mr. Canning he seemed to consider ]Mr. Faden's map 
as the most authentic (an opinion which in so imjiortant a (juestion as that of 
settling a natural boundary it may, jierhaps, be da'ngerous hastily to admit), 
Mr. Pelly has had the posts of the Hudson's Bay Company, in that ])art of the 
territory under consideration, marked on it; he has likewise had coloured the 
proposed line from Lynn Canal, the northern extremity of Chatham Strait, as 
well as tlie less objectional one from Mount Elias. c 

The Faden map here referred to is undoubtedly^ that published, 
in London June 1, 1823 (No. 10 of the British Atlas), about seven 
months before the letter in question was written. In that letter 
also occurs the following: "'The map is sent herewith, and likewise 
a copy of G. H. von Langsdorfi's account of his voyage to the 
northwest coast of America, in the fourth chapter of which is a 
full description of Sitcha." Langsdorfl's map, illustrating his voy- 
age, is No. 7 of the British Atlas. No other specific references 

«U. S. C. App., 144. 

''Memorandum, January 13, 1824, App. British Case, p. 59. 

''B. C, App., p. 65. 



rva«7' 




Fac/en's ^Map, 1823 
fP-om the 'Bnfish Case) 




American Atlas N- ■4,~/feproc/uc'ng 
l/ancouver's Map. A/9 7, Atlas 1738. 




yancoui^fs Map, No. /4, 




^bservafTory 



Arrowsmifh's Map, 1822 
Corrected to 1823. 




a f 



Geofogica/ Corps Map. !842 to I8B2. 
ffrom fhe BnHsh Case.) 



ARGUMENT OB" THE UNITED STATES. 35 

are known to huxe been made, during- the negotiations, to an}- 
othei' map or chart whatsoever. 

The statement heretofore made that Vancouver's Narrative clearly 
indicates the fact that he regarded Observatory Inlet onl}- as a 
"branch" of the main body of water or '"arm of the sea'' to which he 
applied the name of Portland's Canal is confirmed by his chart out- 
lining "Part of the Coast of North America," which appears as No. 
2 in the British Atlas, and as No. 4 in the American. No minute 
examination is necessaiV to perceive that the name "Portland Canal" 
is so printed along one entire side in large letters as to indicate that 
it is given to the "arm of the sea'' or fiord as a whole, while the 
name "Observatory Inlet" is printed in smaller type along that 
"branch" in such a way as to preclude the idea that it was intended 
to apply to any water below Point Kamsden. The accompanj'ing 
reproduction demonstrates the relative size of the t3'^pe employed. 

It thus appears that the name "Portland Canal,'' consisting of only 
thirteen letters, occupies a space just twice as long as that occupied 
by the name "Observator\' Inlet" with sixteen letters. And to this 
must be added the consideration that it is a general rule with cartog- 
raphers to place the name of the object designated as nearly opposite 
the centre of that ol^ject as possible. Applying that rule to the matter 
before us it appears that the names in question have been placed on 
that principle, — the name ''Portland Canal" being placed as near as 
possible opposite the centre of the entire body of water, and the name 
"Observatory Inlet" being placed as near as possible op])osite the 
centre of the "branch'' begiiniingat Point Ramsden, although, accord- 
ing to the admission of the British Case, p. 55, "it was physically 
possible that thev should extend southwar,d as far as Pearse Island." 

If any confusion has resulted from the statement made by Van- 
couver that "The west point of Observatory Inlet I distinguished by 
calling it Point Wales, after my much esteemed friend Mr. Wales, of 
Christ's Hospital," the plain answer is that such confusion was swept 
away when, through the plotting of his field notes, Vancouver saw 
clearly the relations of the several parts of his explorations to each 
other. It is hardly necessary to state that Vancouver's maps or 
charts embod}- the final and revised form of his work. On the map 
in question is the statement that it was "prepared under his imme- 
diate inspection." Map No. 1 of tlie British Atlas, dealing with the 



36 ARGUMENT OF THE UNITED STATES. 

same tsubject on a smaller scale, like\vis(» desig^nates the entire Ijody 
of water by placing the name ''Portland Canal'' as nearl}^ as possible 
opposite the centre in larger type, while the name "Observatory 
Inlet," is placed along the entire "branch" terminating at Point 
Kamsden, in smaller type. 

Nothing on this subject can be drawn from the Russian Map of 1802, 
inclosed in Sir C. Bagot's No. 56, for the reason that the names in 
question were not reproduced. And the same may be said of Langs- 
dorti's map of 1803-4-5 (No. 7 of the British Atlas) liecause the scale 
is so small that the inlets cannot be identified. While the scale of 
Walch's map, Augsburg, 1807, is also too small to l)e decisive one way 
or the other. Pinkerton's Modern Atlas, "from Mr. Arrowsmith's 
map'' of 181S, fortifies the American cont(Mition based on the manner 
in which the names were originally printed. The printing of the 
names on Brue's map of 1815-19 indicates nothing material in favor of 
either party. Before commenting upon the Arrowsmith map of 1822, 
with additions to 1823 (No. 10 of the United States Atlas), a map known 
to have been before the negotiators, the fact should be emphasized 
that its author, " Hydrographer to His Majesty,'' produced, during a 
long period of years a series of official or semi-ofiicial maps of the 
highest character and authority. In the Arrowsmith map just referred 
to, the name "Portland Canal" is so printed as unquestionably to refer 
to the entire "arm of the sea" or fiord, w^hile the name of "Observa- 
tory Inlet" is so printed as unquestionably to refer only to the 
"branch" ending at Point Ramsden. 

The maps of Faden (Nos. 10 and 11 of the British Atlas, the first of 
which is known to have been before the negotiators), published l)y his 
successor James Wyld, "Geographer to His Majesty," after citing 
the authorities on which they are based, including Vancouver, tell 
the same story so far as the printing of the names is concerned. 
If it is to be assumed that the negotiators of the treaty of 1825 had 
before them every map or chart published before that time, it cannot 
be denied that the dominant and central fact that confronted them, on 
every one of importance, including those of Vancouver, was that the 
name "Portland Canal" was so placed and printed as unmistakably 
to extend its application to the entire "arm of the sea" in question, 
while the name "Observatoi'v Inlet" was so placed and printed as 
unmistakably to limit its application to the " branch "ending at Point 
Ramsden. 



ARGUMENT OF THE UNITED STATES. 37 

3IAPS AND CHARTS PUBLISHED SINCE 1825. 

Nothing- could be more emphutic than the confirmation given to the 
statement just made in the map (Am. Atlas No. 1:^), which appears to 
be the first British map published after the making of the treaty of 
182;"). That such map was intended to be an interpretation of that 
treaty is made certain l)y the following printed on its face: ''Note. 
Wherever the summit of the mountains (which are supposed to extend 
in direction parallel to the coast) from the 56th degree of N. Lat. to 
the point of intersection of the 141st degree of W. Long, shall prove 
to be at the distance of more than 10 marine leagues from the Ocean, 
the limit between the British Possessions and the line of coast which 
is to belong to Russia, shall be formed b}- a line parallel to the wind- 
ings of the coast and which shall never exceed 10 marine leagues there- 
from. See Article 4th Treaty 1825. ■' 

On the face of that map, the two islands, Wales and Fearse, which 
are correctl}^ located, are distinctly colored as Russian in yellow, that 
color being used throughout to designate the territory confirmed to 
Russia by the treaty; while the three islands on the east side of the 
canal, Sonierville, Compton and Tuiro, are as clistinctlv colored in 
pink, that color being- used throughout to designate the territory con- 
firmed to Great Britain by the treat^^ As evidence of the fact that 
the construction thus put upon the treaty of 1825 by Arrowsmith was 
identical with that put upon it b}" the French g-eographers, reference 
is made to the map of Brue, published at Paris, IH'6'4 (Am. Atlas, 
No. 13), in Avhich the dividing line between British and Russian ter- 
ritorv is thus described: '"'' Liinite entre les 2)<»<scssl<)ns Anglakei^ et 
Hxxses, d'aprh le traite de 1825.^'' The line in question is a distinct 
dotted line* following the contention of the United States, and there- 
fore including Wales and Pearse Islands in Russian territoiT. 

But more conclusive still is the Admiralty chart (No. 25 of the British 
Atlas) entitled ''Port Simpson to Nass Village,'' of 1868, issued by the 
highest geographical authority known to the British Empire — the 
British Admiralty. It is hard to understand why the following caveat 
should have been inscribed on the face of this chart: '' The name Port- 
land Canal on this sheet was inserted by the SuiTeyors without author- 
ity. The name Portland Inlet as applied to the southernmost part of 
what Vancouver called Observatory Inlet, was copied from an Admi- 
ralty Chart of 1853. By whose authority this name was applied in 



<38 ARGUMENT OB' THE UNITED STATES. 

drawing- that chart is not known/"' As the chart was put forth as 
an official document by the British Admiralty the outside w^orld has 
no right to go behind its 'uiipr'nndtvr in order to inquire into the method 
of its construction. Suffice it to say that it emphatically upholds the 
American Case, affirmatively, by giving to the body of water con- 
tended for therein the names of Portland Inlet and Portland Canal; 
negativel}^, b}^ ig-noring-, as unworthy even of a name or survey, the 
body of water contended for in the British Case. 

In that respect it perfectly agrees with the Narrative of Vancouver 
who said, after he had finished his boat exploration of it: "that proba- 
bly the finest part of the season had been devoted in our late pursuit 
to a very perplexing object of no great value or consideration.'"'^' Just 
as Vancouver, in 1793, gave the name of Portland to the entire "arm 
of the sea" so in 1868 the British Admiralty gave the name of Port- 
land to the onl}^ channel in that "arnr' which was really navigable. 
If by any possibility the fact could be established that the names 
"Portland Inlet"" and "Portland Canal'' were introduced without 
authority into the Admiraltv Chart of 1868, just referred to, how can 
the fact be explained away that these names were repeated in sub- 
stantially the same form on the "British Admiralty Chart No. 2431, 
Cardova Bay to Cross Sound, 1865, corrections to 1884 " (British 
Atlas No. 33) ? Certainly the explanation now prnted on the face of 
that chart does not contest the fact that it was actually issued in its 
present form. 

That the Canadian geographers understood the matter in the same 
way is manifest from the map (No. 42, Atlas Am. Counter Case) pub- 
lished in 1881 in the "Geological and Natural Histor}- Survey of Can- 
ada; Report of Progress for 1879-80." On that map the *" presumed 
boundar}^" is distinctly drawn so as to include Wales and Pearse 
Islands in American territory. Another confirmation coming from 
a Canadian source, is contained in a map (No. 31 of the British Atlas) 
of " British Colombia compiled and drawn by Edward ]Mohun, C. E. 
by direction of the Honorable W. Smithe, Chief Commissioner of 
Lands and Works, Victoria, B. C. 1881.'' On that map the line enti- 
tled "Approximate international boundarv b}' convention between 
Great Britain and Russia, 1825," boldly and distinctly drawn, includes 
both Wales and Pearse Islands within American territory. On a map 

« Vol. II, p. 345. 



ARGUMENT OF THE UNITED STATEH. 39 

of the Dominion of Canada, b}- the "Geological and Natural Histoiy 
Survey of Canada/' 1842 to 1882, (No. 32 of the British Atlas) the 
names '"Portland Inlet"" and '"Portland Chan.'' are printed in capital 
letters along the entire course of the channel contended for by the 
United States, while the name '''Observatory Inlet" is printed in much 
smaller letters along the " branch" ending with Point Ramsden. On 
this map Wales and Pearse Islands are also so tinted as to indicate 
that they are American Territory. 

PRESUMPTION TO BE OVEKCOME BY GREAT BRITAIN THAT THE THAL- 
WEG IS THE BOUNDARY. 

If it be true, as heretofore contended, that the upper part of the 
body of water, admitted by both parties to be Portland Canal above 
Pearse Island, goes to the sea through two channels, is it not a violent 
presumption to suppose that Vancouver would have limited the name 
"in honor of the noble famih' of Bentinck'' to that practically 
unnavigable and narrow channel, to which he referred as " a very per- 
plexing object of no great value or consideration," to the exclusion of 
the broad and navigable channel of which he said: ''The route by 
which the vessels had advanced to Salmon Cove, being intinitely better 
for them to pursue towards Cape Caamana than the intricate channel 
through which I passed in the boats.'' Such presumption is overborne 
by the overwhelming testimony of the numerous maps and charts, 
heretofore referred to, existing prior to and after the making of the 
treaty of 1825. 

The British Case relies mainlv upon two passages from Vancouver's 
Narrative, as follows: 

Nothing of any note having occurred (hiring my absence, I shall conclude this 
chapter by the insertion of the astronomical and nautical observations made at this 
place, and, in consequence of our having been so fortunate as to be able to obtain 
those that were essential for correcting our former survey, and for our future regula- 
tion in that respect, this branch obtained the name of Observatory Inlet, and the 
cove, where the vessels were stationed, that of Salmon Cove, from the alnindance of 
that kind of fish that were there taken. « 

The west point of Observatory Inlet I distinguished by calling it Point Wales,, 
after my much-esteemed friend Mr. Wales of Christ's Hospital, to whose kind 
instruction in the early part of my life I am indebted for that information which has 
enabled me to traverse and delineate these lonely regions. « 

* «B. C. App., 146. 



40 ARGUMENT OB" THE UNITED STATES. 

As hu.s been shown, lookino- to the entire narrative, it is in doubt as 
to what waters he applied the name of Portland Canal. 

There is no affirmative evidence tending- to show that the negotia- 
tors of the Treaty of 1825 ever had any knowledge of Vancouver's 
narrative, entitled "A Voyage of Discovery to the North Pacific 
Ocean." Upon the contrary there is conclusive evidence of the fact 
that Sir Charles Pagot, who for the greater period of time carried on 
the British negotiations, was ignorant of it, — certainly of that part of 
it relating to Portland Canal. 

This statement is borne out by the following, Vancouver, in rebut- 
ting the idea that Portland Canal was the outlet of an interior river 
system, said: "From hence it took a more northerly direction, and 
then trended a little to the eastward of north, where, by ten of the 
forenoon of the following day, it was foiuid to terminate in low marsh}" 
land in latitude 55"^ 45', longitude 2m- 0'." In March, 1824, Sir 
Charles Bagot, in his reply ''to observations of Russian plenipoten- 
tiaries," said: "The head of Portland Channel may be, as there is 
reason to believe, the mouth of some river flowing through the midst 
of the country occupied by the Hudson's Bay Compan}', and it is, 
consequently, of great importance to Great Britain to possess the 
sovereignty of the two shores thereof.'' '^' Furthermore it should be 
noted that througfhout the correspondence between the negotiators 
the astronomical locations are given in longitude west of Greenwich, 
while in the narrative of Vancouver the longitude given is east. On 
all the English maps referred to in the negotiations the longitude 
appears as west of (ireenwich. 

Is it to be presumed that the negotiators generally were better 
informed as to Vancouver's narrative than the experienced repre- 
sentative of Great Britain who, for some years, had been charged with 
her interests at St. Petersburg, and who contradicted Vancouver in a 
vital particular. That the Russian negotiators were either ignorant 
of, or in conflict with the narrative as to the latitude of the termina- 
tion of Portland Canal, which Vancouver had determined to be "in 
latitude 55° 45','' is established by the British Case (p. 20) where the 
following averment is made: "In their reply to Sir Charles Bagot's 
amended proposal, the Russian Plenipotentiaries re-stated their rea- 
sons for proposing as the boundary on the coast of the continent to 
the south ('sur la cote du continent au sud') the Portland Canal, the 

«U. S. C, App., p. 163. 



ARGUMENT OF THE UNITED STATES. 41 

origin of whicli inlaiul ("dans les terres") tii(\y said was at the 50th 
degree of north hititude, and to the east the chain of mountains which 
followed at a very little distance the sinuosities."' The divergence 
between the two statements is tifteen nautical miles. 

In the second place, admitting for the sake of the argument, despite 
the affirmative evidence to the contrary, that the negotiators, or some 
of them, were familiar with Vancouver's narrative, they must have 
known that it could only he considered in connection with his charts 
which were the final, adjusted and authoritative statements of his 
explorations. When the entire body of evidence accessible to the 
negotiators is taken together, — that is to say the narrative and charts 
of Vancouver and the maps and charts of all the other cartographers 
published before 1825, — can it be held that the foregoing passages from 
the narrative, should be held to maintain a conclusion scr improbable, 
looking to the character of the two channels. If any doubt could 
remain in the mind as to the intention of the negotiators, certainly 
that dou])t must be removed l)y the consensus of the cartographers 
who have spoken since 1825 to the effect that Portland Channel is 
really that one described in the American contention. 

In I'eference to the map of Greenhow referred to in the British 
Case. p. 59, where the statement is made that '' he shows the water 
l)oundary running to the north of the islands, in accordance with the 
British contention," suffice it to say that while the line drawn by him 
appears to run in that way, yet by reason of his very defective car- 
tography the mind remains in complete doubt as to the identity of the 
three islands, north of which his line is run! In answer to the further 
statement made at this point in the British Case," that '' it is believed 
that no map has been found showing any contrary indication till a 
comparative!}' late date," reference is made to the Arrowsmith map 
of 1833 (No. 12, American Atlas) in which this famous " " Hj^lrogra- 
pher to His Majesty," within eight years after the treatv' was made, 
distinctly colored Wales and Pearce Islands as Russian territor}', and 
to maps 14, 20 and 24 of the U. S. Atlas. 

THE THALWEG AS THE BOUNDARY OF CONTERMINOUS STATES, 

If the maps and narrative of Vancouver shall l)oth be looked to, and 
if, on the whole evidence, there shall be a dou])t as to what the nego- 
tiators meant, #}en the result should be controlled by the rule of inter- 

«B. C, p. 59. 



42 ARGUMENT OF THE UNITED STATES. 

national law which declares, that, if there be more than one channel in a 
body of water dividing conterminous states, the deepest channel is the 
mid-channel or thalweg- for the purposes of territorial demarcation. 
According- to Grotius: "A river that separates two empires is not to 
be considered barely as water, but as water confined within such and 
such banks and running- in such and such channel."" According- to 
Vattel: ""If, of two nations inhabiting the opposite banks of the 
river, neither party can prove that they themselves, or those whose 
rights they inherit, were the first settlers in those tracts, it is to be 
supposed that both nations came there at the same time, since neither 
of them can give any reason for claiming tlie preference; and in this 
case the dominion of each will extend to the middle of the river, "'^ 

Sir Travers Twiss has well said that ''Grotius and Vattel speak of 
the middle of the rive}' as the line of demarcation between two juris- 
dictions, but modern publicists and statesmen prefer the more accurate 
and more equitable boundary of the niidcliannel. If there be more 
than one channel of a river, the deepest channel is the midchannel for 
the purposes of territorial demarcation; and the boundary line will 
be the line drawn along- the surface of the stream corresponding 
to the line of deepest depression of its bed. Thus we tind in the 
Treaty of Angovie (IT Sept. 1808) concluded lietween the Grand 
Duchy of Baden and the Helvetic Canton of Angovie, that the 
thalweg^ or water frontier line, is defined to be ' the line drawn 
along the greatest depth of the stream,' and as far as bridges 
are concerned, ' the line across the middle of each bridge.' The 
islands on either side of the midchannel are regarded as append- 
ages to either bank; and if they have once been taken possession 
of by the nation to whose bank they are appendant, a change in 
the midchannel of the river will not operate to deprive that nation of 
its possession, although the M'ater frontier line will follow the changes 
of the midchannel."^ See also Bluntschli, Sec. 298, Lardy's trans.; 
Rivier, vol. 1, pp. 142, 168. Hall says that where the boundary "fol- 
lows a river, and it is not proved that either of the riparian states 
possess a good title to the whole bed, their territories are separated by 
a line running down the middle, except where the stream is navigable, 
in which case the centre of the deepest channel, or, as it is usually 

<> De Jure Belli ac Pads, 11, c. 3, Sec. 17. 
b Droit des Gens, Bk. 1. c, XXII, Sec. 26. 
<-The Law of Nution>i, 1 pp. 207-8. 



ARGUMENT OF THE UNITED STATES. 43 

called, the Thalweg is taken as boundary.""' The rule Ls not limited 
however to cases in which rivers are boundaries between conterminous 
states; it extends as well to the thalweg of ''a strait, sound, or arm of 
the sea." That view is thus stated in Field's International Code, p. 16: 
"'Boundary hy a stream or channel. 30. The limits of national terri- 
tory, bounded b}^ a river or other stream, or by a strait, sound, or 
arm of the sea, the other shore of which is the territory of another 
nation, extend outward to a point equidistant from the territorv of 
the nation occupying the opposite shore; or if there be a stream or 
navigable channel, to the thread of the stream, that is to sa}', to the 
midchannel; or, if there be several channels, to the middle of the 
principal one." To the same effect is Halleck, who says: "But where 
the river not only separates the conterminous states, but also their 
territorial jurisdictions, the Thalweg, or middle channel, forms the 
line of separation through the bays and estuaries through which the 
waters of the river flow into the sea. 

"As a general rule, this line runs through the middle of the deepest 
channel, although it may divide the river and its estuaries into very 
unequal parts. But the deeper channel may be less suited, or totally 
unfit, for the purposes of navigation, in which case the dividing line 
would be in the middle of the one which is best suited and ordinarily 
used for that object. The division of the islands In the river and its 
ba3^s would follow the same rule."* 

In this case it is proven that the channel contended for by the 
United States is the deepest, broadest and by far the most important 
because it is in fact the only really navigable and safe one.^ Vancouver, 
if his narrative shall be regarded as admissible evidence, put that 
fact at rest by describing the narrow, rocky and really unnavigable 
channel contended for by Great Britain as an "object of no great 
value or consideration." In describing his boat exploration to the sea, 
partly through this channel, he says, " and though our utmost exertions 
had been called forth in tracing the continent through tJils Jahyrhith 

(I Int. Law, p. 127. 

^Int. Law (Baker ed.), voL 1, p. 171, citing Griindling, /".'* Xat., p. 248; Wolfing, 
Jas Gentium, Sees. 106-109; Stypmannus, Jus Marit., etc., cap. V, N. 476-552; Merlin, 
Repertoire, voc. 'alluvium;' Rayneval, Droit de In Nature, torn. I, p. 307; De Cussy, 
Droit Maritime, liv. I, tit. II, Sec. 57. 

«U. S. C. C. Apj)., 237-238. 

4574—03—4 



44 AEGUMENT OF THE UNITED STATES. 

of rod's we had not advanced more than thirteen leagues in a right 
line from the ships to the entrance of this inlet/' He never dared to 
traverse that part of it, heretofore designated as the "foul groiuid,'' 
even in open boats. 

At no time, either before or after his boat excursion, did he ever 
venture to enter the smaller channel with his ships. His charts tix 
the fact that he navigated with his ships the larger channel, into the 
junction with Observatory Inlet, both in and out. The reason he 
gives in his narrative for this preference is that '""The route by which 
the vessels had advanced to Salmon Cove, l)eing infinitely better for 
them to pursue towards Cape Caamano, than the intricate channel 
through which I had passed in the boats.'' As hitherto pointed out, 
the smaller channel, is of an average depth of sixty-four fathoms, and 
of an average width of only three quarters of a nautical mile, at two 
points, narrow^ed to a width of about an eighth of a mile, while the 
greater channel, of an average depth of two hundred & eighteen 
fathoms is of an a.verage width of 2.58 nautical miles. As stated here- 
tofore the volume of water contained in the larger channel is about 
eleven and a half times as great as. that contained in the smaller; 
while the narrowness of the smaller produces a choking of the waters 
passing through it, in its tidal action, to such an extent that about 
ninety per cent of the tidal flow is through the channel contended for 
by the United kStates. 

Is it, therefore, a matter of wonder that the British Admiralty chart 
of 1868 should have entirely ignored the smaller channel as unworthy 
even of a name or survey, while the larger was carefully designated as 
"Portland Inlet." There is no question here of weighing evidence in 
order to determine which one of two channels running through "an arm 
of the sea" is the deepest, widest and most navigable. The proof does 
not leave any room for dou])t. It is simply a question of substituting 
for the general lule of international law, designating such thalweg as 
the boundary a imperial <ind eonventional rule declaring a smaller, nar- 
rower and ••shallower'"' "labyrinth of rocks" as the boundary. The 
only possible way in which Great Britain could work out that result 
would l)e to establish affirmatively that such was the special contract 
and agreement entered into with Russia in the treat}^ of 1825, the 
effect of which would be the suspension of the general rule of inter- 
national law declaring the deepest and most navigable channel the 



AEGUMENT OF THE UNITED STATES. 45 

midchannel, and the sul).stitution in its place of a special and conven- 
tional rule declarino- the contrary. See Grotius, De Jure Belli ac 
Pack, lib. II, c. Ill; Bluntschli XV, 2; Martens, Freck, i< 119, p. 320; 
Bluntschli, YiMerrecht, § l(i2, Lardy's trans.; Calvo, DroU Lit.,1, 
§ 19, p. 109; Phillimore, Int. Law, 1, pp. 41—1:5 (2d ed., London); Twiss, 
Law of Nations, 1, pp. 130-1,31; Lawrence's Wheat., p. 28; Halleck, 
Int. Law, 1 (Baker ed.), p. 50; Lo rimer, Ins. of Int. Law, 1. p. 43. 

Reference in this connection is made to the rule of construction 
No. 6 set forth above, which provides that it is not to be presumed 
without very strong reasons that one of the conti'acting parties 
intended to favor the other to his own prejudice. It is not to be pre- 
sumed, therefore, that the Russian Government intended to abandon 
the use of the only channel leading to its possessions along the 
southern boundar}" of the li^tere, which it knew to be navigable and 
safe, and to confine itself to the use of a channel which was not of 
sufficient importance to be clearly shown on some of the charts and on 
others was shown to be so broken and tortuous that its dangerous and 
undesirable character both for navigation and as a l)oundary is evident 
at a glance. 

SOUTHERN LINE OF RUSSIA AS DEFINED IN TREATY OF 1824 BETWEEN 
RUSSIA AND THE UNITED STATES. 

It was claimed by the L^nited States that the territorial claims of 
Great Britain and the United States were coextensive and concui'rent 
on the northwest coast of North America. The idea that the United 
States had "'no territorial pretensions so high as the tifty-tirst degree 
of north latitude and no territorial interest in the demarcation of the 
boundary between His ^Majesty and the Emperor of Russia to the 
north of that degree" was dissipated by the note of Sir C. Bagot 
to Mr. Canning of October IT 29, 1823. in which he said: 

Although Mr. ^Nliddleton has not communicated to me the instructions which he 
had received, I have collected from him, with certainty what I have long had 
reason to suspect, that the United States, so far from admitting that they have no 
territorial pretensions so high as the lifty-lirst degree of north latitude and no terri- 
torial interest in the demarcation of boundary between His Majesty and the Emperor 
of Russia to the north of that degree, are fully prepared to assert that they have at 
least an equal pretension with those powers to the whole coast as high as the sixty- 
first degree, and ^n absolute right to ])e parties to any subdivision of it which may 
now l)e made. Unless I gi-eatly misconceive the argument of Mr. Middleton, it is 



46 ARGUMENT OF THE UNITED STATES. 

contended l)y the American Government that, in virtue of the Treaty of Washing- 
ton, by which the Floridas were ceded by Spain to the United States, the latter are 
become possessed of all claims, whatever they might be, which Spain had to the 
northwest coasts of America, north to the forty-second degree of north latitude, and 
that when Great Britain, in the year 1790, disputed the exclusive right of Spain to 
this coast, the court of Russia (as, indeed, appears by the declaration of Count 
Florida Blanca, and as it would, perhaps, yet more clearly appear by reference to 
the archives of the foreign department here) disclaimed all intention of interfering 
with the pretensions of Spain, and, consequently, all pretensions to territory south 
of the sixty-first degree, and that, therefore, any division of the coast lying between 
the forty-second and sixty-first degrees ought in strictness to be made between the 
United States and Great Britain alone. « 

When during- the nog-otiations of 1824 Mr. Middleton was notified 
that Great Britain would treat separately, he at once notified the Rus- 
sian Minister of Foreign Affairs and Sir Charles Bagot that if any 
attempt was made to negotiate upon the territorial question without 
the participation of the United States, it would be his duty to protest 
in the strongest terms. He stated to the British Minister that, as 
Great Britain had "no settlement or possession upon any part of the 
north-west coast of Americja," she had no "claims'" to convey except 
such as she derived from the Nootka Sound convention with Spain, 
signed October 28, ITUO; that the United States had succeeded to all 
the Spanish rights by the treaty of February 22, 1819, which gave the 
latter concurrent claims with Great Britain whatever her pretensions 
might be; and that for these reasons any treaty l)etween Great Britain 
and Russia in which the United States was not a party would l)e nuga- 
tory as to it and could not divest it of the right to enjo}- the coast. 

After having made a like declaration to Count Nesselrode, Mr. 
Middleton secured an interview with him on Februar}' 23, 1824, at 
which he su]>mitted a brief paper entitled, "State of the Question," 
in which the territorial claims of the United States were thus formally 
defined: 

The United States, l)y their discovery of the mouth of the Columbia river and 
by their subsequent veal occupation and continued possession of a district on the 
same part of the Northwest Coast of America, have i^erfected their right of sover- 
eignty to that territory. 

By the third article of a convention with Great Britain, concluded October 20, 
1818, they stipulated "that any country that might be claimed by either party on 
the Northwest Coast of America westward of the Stony mountains should, together 
with its har])ors, bays and creeks, and the navigation of all rivers within the same, 

^'U. S. C, A pp., pp. 129-130. 



ARGUMENT OF THE UNITED STATES. 47 

be free ami open, for the term of ten years fioni that date, to all vessels, eitizens, and 
subjects, of the two powers, without prejudice to the claims of either i)arty or of any 
other State." 

By a convention with Spain of February 20, 1819, the United States ac(|uired all 
the rights, claims, and pretentions, of that power to all the Northwest Coast lying 
north of the 42d parallel of latitude. The claims of Spain appear to have rested 
on prior diacoveri/, as far as the lifty-ninth degree north. So far, then, as prior 
discovery can constitute a foundation of right, the Northwest Coast as far as the 59th 
degree north belongs to the United States by the transfer of the rights of Spain. 

Great Britain has no establishment or possession on any part of the Northwest 
Coast. She has, therefore, no right, claim, or ])retension to any ixirtion thereof, 
except such as may result from the convention with Spain concluded October 28, 
1790. It is, then, evident that her claim is concurrent with those of the United 
States, and can only reach to whatever point these last may l)e considered to extend. 

It appears, then, that Russia and England can not make a definite arrangement 
without the participation of the United States, or at least going to their exclusion. 
Any agreement which these two powers may make will be binding upon themselves, 
but can not effect the rights of a third power." 

The outcome of the separate negotiation ))etween Rus.sia and the 
United States was the treaty signed 5 17 April, 1824, which provided 
(Article III) that '' It is moreover agreed that, hereafter, there shall 
not be formed by the citizens of the United States, or under the 
authority of the said States, any establishment upon the Northwest 
coast of America, nor in any of the islands adjacent, to the north of 
jifty-fouv degrees and fort ij minntes of north latitude; and that, in 
the same manner, there shall be none formed by Russian subjects, or 
under the authority of Russia, south of the same parallel." 

The outcome of the separate negotiation between Russia and Great 
Britain was the Treaty signed February 16 28, 1825, which provided in 
Art. Ill, that the line should conmience at the southernmost point of 
the island called Prince of Wales Island, which point lies in the parallel 
of 5Ji dtgrei'S J^O minutes^ north latitude. It thus appears that in the 
respective treaties the parallel of 54^ 40' was the common line of 
demarcation separating the jurisdiction of Russia on the south from 
that of Great Britain and the United States. In a note written on 
the very day the treaty between Russia and the United States was 
signed, April 5 17, 1824, Count Nesselrode wrote to Count Lieven, 
concerning the southern line to be settled with Great Britain as 
follows: 

In order not to cut Prince of Wales island, which, according to this arrangement, 
would remain to Russia, we proposed to carry the southern frontier of, our domains 

«U. S. C, App., pp. 81-82. 



48 ARGUMENT OF THE UNITED STATES. 

to latitude 54° -HV and to make it abut upon the continent at the Portland Canal, of 
which tiie opening into the oeean is at the same latitude as Pi-ince of Wales Island, 
and which has its origin inland between 55° and 56° of latitude. * * * if Prince 
of Wales Island remains to us, it is necessary that it can Ije of some utility to us. 
Now, according to the plan of the British ambassador, it would be for us only a 
burden, and perhaps an inconvenient one. That island, in fact, and the establish- 
ments which we might set up thereon, would find themselves entirely isolated, 
deprived of all support, surrounded by the domains of Great Britain, and at the 
mercy of the English establishments of the coast. W^e would exhaust ourselves in 
the cost of guarding and watching our part without any compensation to alleviate 
the burden. WouM such an arrangement be f()unde<l on the princii)le of nnitual 
expediency? 

We have all the more right to appeal to this principle, since England herself has 
proved bj^ an authentic act that she regarded her rights to the territory, the sur- 
render of which she demands, as doubtful. The convention of October 20, 1818, 
between the Court of London and the United States, declares that all the extent of 
country between the Rocky Mountains, the Pacific Ocean, and the Russian posses- 
sions shall be the common property of the two powers for ten years. The titles of 
the United States to the possession of this territory are, therefore, as valid as those 
of England. Nevertheless, the Cabinet of Washington has admitted that our 
boundary should come down as far as 54° 4cy. This has been admitted in a formal 
agreement that we have just signed with its plenipotentiary, and the strengthening 
of'our arguments is far from being the only result of this admission; it lias other 
consequences to which we rightly attach the greatest importance. " 

On August 31, 1824, Count Nesselrode, in writing- to Count Lieven 
to the effect that there were three of the then pending proposals of 
Great Britain which it was impossible to accept, said: "' I reserve to 
nwself the dut3^of making, in this dispatch, the most important obser- 
vations, those concerning clauses which it is utterly impossible for us 
to accept. They are throe in number: 1. Libertv to English subjects 
to hunt, to tish, and to trade with the natives of the country, perpet- 
ually, on the whole of that part of the coast which constitutes the 
subject of the discussion, and which extends from 59'- of north latitude 
to 54"' 40'."'^ It thus appears that no matter whether Count Nessel- 
rode was negotiating with the United States or Great Britain his one 
idea was that Russia's southern boundary, on the coast, as to each, 
was to be 54° 40'. 

There is therefore no warrant for the following statement in the 
British Case (p. 56): '■'This shows that the British understanding, 
conununicated to and not questioned by Russia, was that Portland 

"U. S. C, App., pp. 17:^-174. '' U. S. C, App., p. 201. 



ARGUMENT OF THE UNITED STATES. 49 

Channel entered the oeean in 54"^ -io'''. It should he remembered 
that that statement, l)ased on Sir C. Bagot's pro]iosal of '* February- 
March, 182i," was followed by the two communications quoted above 
from Count Nesselrode to Count Lieven, dated respectively April 
5 IT, 1824, and August 31. 1824, in both of which Russia, combating 
the British suggestion, insisted upon the line of 54 4<>'. X()tal)ly in 
the lirst communication al)ove quoted Count Nesselrode said: 

We proposed to carry the southern frontier of our dominions to latitude 54° 40'' 
and to make it abut upon the continent at the Portland Canal, of which the opening 
intt) the ocean is at the same latitude as Prince of Wales Island. 

It is hardly- necessary to add that the phrase '"the same latitude as 
Prince of Wales Island" necessarily referred to the southern part of 
that island. If that l)e true, Russia's southern line could only enter 
Portland Channel at the point contended for by the United States. 
In the light of the foregoing does it not violate all human proba- 
bility to assume that Russia intended to fix her southern boundary 
at one point, as to the United States, and at another point, as to 
Great Britain, leaving between the two a wedge-shaped expanse of 
water forming a triangle with a base of less than six miles and a 
height of about seventy? 

IDENTITY OF PORTLAND CHANNEL AS UNDERSTOOD BY THE PARTIES 

AFTER THE TREATY. 

The lease of the Uslert to the Hudson's Bay Company recited 
that it included the ''Coast, exclusive of the Islands, and the Interior 
Country belonging to His Majesty the Emperor of Russia, situated 
l)etween Cape Spencer forming the North West Headland of the 
entrance of Cross Sound and Latitude 54- 4(»' or thereabouts, say the 
whole mainland coast and Interior country belonging to Russia" etc." 

It is to be noted that the words ''or thereabouts" used to 
qualify 54- 4<i' as the location of the southern extrennty of the 
territory leased, do not signify any doubt as to the location of the 
boundary line at that parallel, but on the contrary show that it 
was well understood that the leased territory was not to extend 
fully to the ))oundar\- at that point. The lease was limited ex- 
pressly to the mainland coast and all the islands were in terms 
excluded. 

«B. C. App., 150. 



50 AEGTJMENT OF THE ITNITED STATES. 

All examination of the maps will show that the mainland coast was 
some distance above 54^ 40' at that point, and that in the intervening 
space Avere Wales Island, Pearse Island and several other smaller 
islands. The signiticance of the expression '"'54'^ 40' or thereabouts" 
as the southern limit of the lease therefore, is that it was recognized 
that if the description was carried to the boundary at 54^ 40' without 
qualification it would extend 1)eyond the niaiiiland and include these 
islands which would have conflicted with the other provisions of the 
lease. The onl}- escape from this conclusion would be in the assump- 
tion that the lease was not prepared with care and precision. The 
character of the lease forbids such an assumption, hoAvever, and it 
appears upon the record that the reverse is true. ]\Ir. Simpson, who 
negotiated the lease with Baron Wrangell, in writing to him in 
preparation for it says that it had ])een understood that the islands 
would be included within the leased area but on the understanding 
that they were to be excluded he continues: 

But 8uch being the new state of affairs, it is necessary to enter into the minutest 
considerations and details .... in order tc) guarantee that we shall be jirotected 
from all direct or indirect rivalry in trading in the leased territory. « 

The fact that care was taken to describe the southern end of the 
leased territory so that it Avould not extend to the line of the bound- 
ar}^ on the water at the entrance of Portland Channel, therefore 
indicates that it Avas done in order that there should be no question 
of its extending beyond the mainland and including the islands 
Wing between the mainland and the boundary at .54"^ 40'. This 
was a mutual recognition that such islands above 54-^ 40' belonged 
to Russia and consequently" that the Portland Channel of the treatj' 
was not limited to the channel wholly separated from 54^ 40' and 
l^dng between the islands and the mainland. 

The translation of the lease as given in the United States Counter 
Case Appendix, p. 6, differs from the translation in the British Case 
Appendix at p. 150, and omits the Avords "or thereabouts," in con- 
nection Avith the reference to .54^ 40'. It is immaterial, howeA'er, 
Avhich translation is relied upon, for in either case the proof is com- 
plete on the point that there was a mutual recognition that the islands 
above 54- 40' ])elonged to Russia, and consequentlv that the Portland 
Channel of the boundary Avas not above such islands. 

«U. S. C. C. App., 4. 



AEGUMENT OF THE UNITED STATES. 51 

Throughout the proceeding-s lending up to this lease and in subse- 
quent references to it, the understanding- on both sides is uniforinly 
shown to have been that the ])oundarY extended to Si- -iO' and 
that the Portland Channel of the boundarj- was the channel, through 
the entrance of which that parallel is found. The following extracts 
leave no doubt on that point: 

Our Company believes that * * * it would be advisable to cede to the 
Hudson's Bay Company the exclusive right of trade on the shore of the conti- 
nent between latitude 54° 40^ and the Cross Strait/' [Report of Count Xesselrode.] 

In the letter of the Directors of the Russian-American Companj" 
to the Minister of Foreign Affairs, January 25, 1859, the lease is 
referred to as "of a part of our possessions on the North West 
coast of America, a strip of land extending in a North Westerly 
direction from latitude 5-1" 40' north, etc."^ 

In the memorandum submitted bv the Kussian Minister of Finance 
to the Vice Chancellor in his letter of March 10, 1867, he says of 
the lease that it related to ''that part of the mainland belonging to 
Russia which lies between Cape Spencer and 54^ 40' northern lati- 
tude" etc.'' 

He also says that the Cnited States Minister on behalf of certain 
merchants in California has offered to lease exactly the same territory 
leased to the Hudson's Bay Company, together with the islands, and 
this territory he describes as running part of the way "southward 
along the above mentioned boundar}^ (the boundary between Russian 
and English possessions) to latitude 51:-- -10' " etc.'' 

In the testimony of Sir George Simpson before the Committee of 
the House of Commons, 1857, he saj's: 

There is a margin of coast marked yellow in the map from 54° 40^ up to Cross 
Sound, which we have rented from the Russian-American Company for a term of 
years. '^ 

Sir George Simpson also saj^s in his Narrative of his Journey Round 
the World, 1841-2, speaking of the lease: 

Russia, as the reader is, of course, aware, possesses on the mainland, between 
lat. 54° 40' and lat. 60°, a strip, etc. f 

» U. S. C. C. App., ;i ''Y. S. C. C. App., 38. 

bV. S. C. C. App., 21. '=11. S. C. App., 318. 

<- U. S. C. C. App 34. 



52 ARGUMENT OF THE X^Nll'ED STATES. 

Russia was fully informed of the terms of this lease and sanctioned 
it, as appears from the recital in Art. I of the lease, and also from 
the reports of the Russian officials printed in the record. There can 
be no doubt, therefore, as to the Russian understanding- that the 
southern boundary' of her possessions on the coast extended to 54^ 40' 
and her intention to express that understanding- in this lease. 

It is equal 1}' clear that the attention of the British Government was 
directed to the making- of the lease and to its terms. The lease was 
the direct outcome of the Dryad claim, for the settlement of which the 
British Government was vig'orously pressing-, and it is not to be 
presumed that the settlement, through the medium of this lease, was 
agreed to without a full understanding- and approval of the circum- 
stances on the part of Great Britain. Furthermore, the Hudson's 
Bay Company had full knowledge of how the lease was understood 
by Russia and the testimony of Sir G. Simpson, the Governor of that 
company, quoted above is itself sufficient to show that that company 
acquiesced in such understanding and that knowledge of the lease, and 
its bearing on the question of the boundary at 54:^' -±0' was brought 
home to the British Government. Further evidence of official knowl- 
edge of this lease on the part of Great Britain is furnished by the 
neutrality agreement with Russia, which was made expresslv because 
of the existence of this lease. 

In view of these considerations, therefore, even if Great Britain 
should plead official ignorance of the lease prior to the definite infor- 
mation l)roug-ht home to her as shown above, there certainly can be 
no doubt as to her notice at that time, and her acquiescence in the 
lease and her action with respect to it impute to her full knowledge 
of all that it involved. 

Reference is also made to the numerous other specific instances 
referred to elsewhere in the argument and in the United States Case 
and Counter Case in connection with the lease of the listere which show 
that this nuitual understanding- as to the coincidence of 54" 40' and the 
Portland Channel of the treaty received general acceptation and con- 
firmation in the maps and the public and private writings emanatiug- 
froni British sources. 

TOKGASS ISLAXB STATION. 

On page 8 of the British Counter Case stress is laid on the location 
in 1835 by the Russian-American Company of a station on Tongass 



ARGUMENT OF THE UNITED STATES. 53 

Island, which lies north and west of the entrance to what is denom- 
inated in the United States Case ''Pearse Canal," and in the British 
Case '"Portland Canal." It is claimed that inasmuch as the direction 
■was to locate a station "on the frontiers of our straits," the fact that 
the location was made on Tongass Island proves that it was regarded 
by the Kussian-American Company as being- the extreme frontier of 
Russian territory. This is an over strained conclusion. The instruc- 
tions said: 

As we may say that the only place in our straits, visited by the foreigners is Ton- 
gas, you must select this l)ay as the place of your sojourn. 

The selection was not made with any object of fixing a l)Oundary 
point. It was only chosen as a convenient station near the frontier 
for protecting the trade with the natives. It appeared as stated that 
it was the onl}^ place visited by the foreigners. As the object was 
to police the frontier against foreigners and not to fix an extreme 
boundary point, that point was chosen to which foreigners resorted 
rather than a point nearest the water up which the boundary line 
passed to which foreigners had not resorted. The instructions which 
are onl}- partiall}- quoted in the British Counter Case, go on to sa}' 
that the most important influx of furs is at Tongass. That was a 
sufficient reason for establishing the station there.'^' 

ALLEGED ADMISSIOX IS THE UXITED STATES CASE. 

In the British Connter Case (p. 7) a passage is quoted from the Case 
of the United States as follows: 

The condition of the territorial controversy "Had shrunk to a dispute over the 
possession of an irregularly shaped portion of the continent l)ounded on the east 
by Pearse and Portland Canals and a presumptive chain of mountains, on the 
north by a line extending from a point on the coast, about latitude 56° 30', to 
the mountain range, and on the west by the indented continental shore line, 
together with the islands lying between Clarence Strait and the mainland from 
54*^ 40' to 56° 30' and thus situated north and west of Portland Canal and between 
it and the continent. 

The British Counter Case proceeds: 

It will be noticed that the eastern boundary of the section described is given 
as "Pearse and Portland Canals". But "Pearse Canal", which is the name sub- 
sequently given by the United States to the lower part of Vancouver's Portland 
Canal, and " Portlantl Canal", which name was later limited by the United States 

* «U. S. C. App., 233-234. 



54 ARGUMENT OF THP] UNITED STATES. 

to the upper part of Vancouver's Portland Canal, make together the "Portland 
Canal" of Vancouver as claimed ))y Britain. 

And there is thus here an express admission that, at this stage of the nego- 
tiation, it was that canal, and no other, \vhi(!h the Parties meant by Poitland 
Canal. 

This is based on a inisunderstanding of the passage quoted. The 
effect of the words ''together with the islands l3ino- between Clar- 
ence Strait" etc. is overlooked. The^y are intended to be taken with 
the words, ''an irregularly shaped portion of the continent" etc. 
It was meant to say that it had shrunk to a dispute over the por- 
tion of continent, within the bounds designated, together with the 
islands described. This is plain from the concluding words which 
say, that they (meaning the islands) are situated north and west of 
Portland Canal and ])etween it and the continent. No such admis- 
sion as that stated was made l^}' the United States. 

It is submitted on behalf of the United States therefore that the 
Portland Channel of the treaty, when tested by the intention of the 
negotiators, by the language of the treaty, and by the understand- 
ing of the parties as shown by their subsequent actions is clearly 
identified with that body of water commonly known as Portland 
Channel in accordance with the answer proposed b}^ the United 
States in answer to the second question. 



SEVENTH. 

Third Question. ""IV/i at course slionld the line take from the point 
of comniencement to tlie entrance of Portland Channel? 
Answ^er Proposed by the United States: 

The United States requests the Tribunal to answer and decide that the line 
from Cape Muzon should be drawn in an easterly direction, until it intersects 
the center of Portland Channel at its opening into Dixon Entrance. « 

The British Case says: 

The question rightly assumes that the course of the line must be from the point 
of commencement to the entrance of Portland Channel. '' 

The view of the United States can be more definitelj" stated by 
saying that the line should be drawn along the parallel of latitude 

«U. S. C, 104. ''B.C., 6-1. 



ARGUMENT OF THE UNITED STATES. 55 

54:^ 4U'. through Dixon Entrance until it intersect.s the center of 
Portland Channel, at its opening into Dixon Entrance. Fixing the 
latitude of 54- 40' as the boundary was a dominant idea in the 
negotiations. The boundary was to l>e carried below 54- 40' on 
Prince of Wales Island, only for the purpose of giving all of that 
island to Russia, and it Avould be in harmony with the plain intent 
which the parties had in view by this departure, to accomplish this 
particular purpose, and then carry out the general intent of the 
Treaty, by running the line along the parallel 54-^ 40'. 
The language of the treaty is: 

A i)artir du Point le plus meridional de I'lle dite Prince of Wales, lequel Point se 
trouve sous la parallele du 54nie degre 40 minutes de latitude Xord, et entre le 
131me et 133me degre de longitude Quest (Meridien de Greenwich), la dite ligne 
remontera an Xord le long de la passe dite Portland Channel." 

It further provides: 

Que I'lle dite Prince of Wales appartiendra toute entiere a la Russie. ^ 

This would seem to indicate that in the description the parallel 
was regarded as the real point of departure, and so to guard against 
the result that, Prince of Wales Island might be divided, the express 
provision was inserted so that, notwithstanding the designation of 
the parallel, the whole of the island should belong to Russia. This 
shows the signiiicance given by them to the parallel and the neces- 
sity they felt for adding the special provision to guard against the 
possible effects of running the line from the commencement along 
that parallel. This view is reinforced when taken in connection 
with the discussion of the question as to what channel was meant 
by Portland Channel, in which it was endeavored to show that the 
parallel 54-^ 40', as it was considered and treated by the negotiators, 
is demonstrative of what they meant by Portland Channel. 

Different lines are proposed by the United States and by Great 
Britain, but the difference arises out of the controversy as to what 
constitutes the entrance to Portland Channel. 

If the Tribunal shall agree upon an answer to the second ques- 
tion, then from the positions assumed by both parties in respect to 
the third question, the answer to that cjuestion involves no diffi- 
culty. If it be decided that Portland Channel is the body of water 

which enters Dixon Entrance between Wales Island and Compton 

: ^^ 

«U. S. C. App., 3. bV. S. C. App., 4. 



56 AKGUMENT 0¥ THE UNITED STATES. 

Island, as is contended for in the United States Case," then the line 
should be drawn from the southernmost point of Cape Muzon to the 
parallel 54"^ 40', and along this parallel to the channel, until it 
strikes its center. 

The line does not, as Great Britain claims, go north from the 
beginning-, except so far as may be necessar}^ to gain the latitude 
of 54-^ 40', if it shall be determined from all that 'appears that it 
was the intention that it should proceed along that parallel. In 
this event it will go north from the southernmost point of Prince 
of Wales Island onl}" in obedience to this controlling intent and 
on account of the relative positions of the end of the island and 
the parallel, and not on account of the words "au Nord'"" in the 
text. The}' apply only to the direction of the line as it proceeds 
up Portland Channel to the 56"". This is not only the fair gram- 
matical construction, but it is demonstrated by the physical situa- 
tion. The mouth of neither of the channels claimed by the con- 
testants to be Portland Channel is so located in respect to the 
southernmost point of Prince of Wales Island as to make it at all 
probable that the negotiators would have described a line connect- 
ing them as proceeding ''au Nord." Both mouths are almost due 
east from the southernmost point of the island. 

EIGHTH. 

Fourth Question. "To whaf jjo/'/if of tJie fi If ty-sia-tJi parallel is 
the line to he drawn from the head of the Portland Channel, and 
'what course should it follovi hetioeen these points?^'' 

Answer proposed by the United States: 

The United States requests the Tribunal to answer and decide that the line 
should be drawn from the head of Portland Channel northeasterly along the same 
course on which said line touches the mainland at the head of Portland Channel 
until it intersects the 56th parallel of north latitude.'' 

The language of the Treaty between Great Britain and Russia 
of February 16-28, 1825, has been given on page 3. 

It is questioned in the British Case whether " elle " in the words 
"ou elle atteint le 56me degre de latitude Nord," refers to the line, 
the channel, or the main la,ud.'' 

«U. S. C, 104. ft U. S. C, 104. ^B. C, pp. 68-69. 



AKGUMENT OF THE UNITED STATES. 57 

The subject of the discourse is '' hi ligne/- and unquestionably 
*'elle'^ gramiiiatically refers to it. 

The provision is that "de ce dernier point,'' the line shall follow 
the crest of the mountains. It was a ph^-sical impossibility for Port- 
land Channel to reach the crest of the mountains. 

The negotiations show very clearly that it was the line that was 
to proceed along Portland Canal, and that it was the line that was 
to reacli the 56th degree north latitude. In the amended proposal 
made by Sir Charles Bagot, he says: 

As it has? been agreed to recognize as basis of negotiation the mutual conveniences 
of both countries, it is to be noted, in answer to the jsroposal offered l)y the Russian 
Plenipotentiaries, that a dividing line, starting from the southernmost extremity of 
the Prince of Wales' Island and extending to the mouth of the Portland Channel, 
thence, by the middle of this channel until it reaches the mainland, thence to the 
mountains bordering the coast, etc." 

He makes it plain that the line was to continue^ from the point 
where the channel reached the mainland to the mountains bordering 
the coast. 

The language used by Mr. G. Canning in the draft convention pre- 
pared b}" him has in the second article the following: 

Along the channel called Portland Channel, till it strikes the coast of the conti- 
nent lying in the 56th degree of north latitude. From this point it shall be carried 
along that coast, etc. '>' 

That is to say, the line from the point where it sti'ikes this 
degree shall l)e carried along the summit of the mountains. 

In Article three of the contre-projet. submitted hy Stratford 
Canning, it is provided, that: 

The said line shall ascend to the north (Prince of A\'ales Island lielonging entirely 
to Russia) along the passage called Portland Channel until it touches the coast of 
the mainland at the tifty-sixth degree of north latitude. From the point at which 
the line of demarcation touches the lifty-sixth degree, it shall follow, etc. *' 

The draft in French submitted by Stratford Canning, Art. 3, 
contained this language: 

La dite ligne remontera au Xord (I'lsle Prince of Wales appartenant en entier 
a, la Russie) le long de la Passe dite Portland Cliannel, jusqu'a ce qu'elle 
touche a la Cote de terre fernie au 56me degr^ de Latitude Nord, depuis ce point- 
ci, ou la ligne de demarcation touche au 56me degre, elle suivra la crete, etc' 

«B. C. ^pp., 70; U. S. C. App., l.=)9. 'U. S. C. App., 210. 

ftU. S. C. App., 18;3; B. C. App., 87. <> V . 8. C. App., 21;]. 



58 AEGUMENT OF THE UNITED STATES. 

This' Ian oiuig'c was altered b}" Matusevich to read as follows: 

La dite ligne remoutra au Xord le long de la Passe, dite Portland Channel, 
jusqu'u I'endroit ou cette passe se terniine dans rinterieur de la terre forme an 
oOme degre de Latitude Nord — depuis ce dernier point la ligne de demarcation 
suivra la crete, etc/' 

It will be noted that he substituted "passe" for "ligne." In the 
final draft, however, it will be noted that in this respect the lan- 
guage followed more closely the draft of Mr. Canning. It is quite 
apparent that it was supposed that the channel reached to about 
the tifty-sixth degree. 

The line is to run "au Nord," that is, northwardly along Port- 
land Channel, and to continue northwardly to that point on the 
land where it reaches the tifty-sixth degree. 

It is to run "au Nord," not only "le long de la passe dite Port- 
land Channel," but northwardly to the point where the line touches 
the tifty-sixth degree. The words "au Nord," qualify the entire 
distance along the channel and to the fifty-sixth degree, and not 
merely the length of Portland Channel. The line shall run north- 
wardly until it reaches the said degree. 

As will be shown under the discussion of the Fifth Question, the 
treaty was made with reference to certain maps, and to a chain of 
mountains w^hich was depicted on them. It was admitted b}" the 
negotiators that there was great uncertaint}^ as to the actual location 
of these mountains. The summit of the mountains is represented on 
Vancouver's chart seven, as existing in this vicinit}^ in about latitude 
55"^ 50', and on his general chart in latitude about 5<)^ 10'. Stapleton 
says: 

The line . . . was . . .to ascend to the north along Portland Chan- 
nel as far as the point of the continent where it ivould stvike the 56° of north 
latitude, etc. ^ 

The Russian map of 1802, shows the mountains approximately at 
the same point, as Vancouver's Chart Seven.'' 

Faden's map shows the mountains to be about 56° 07'. 

If it shall be made clear that the negotiators contracted, with 
reference to a chain of mountains supposed to be near the head of 
Portland Channel, and near the 56tli degree at its nearest approach 

«U. S. C. App., 218. ''British Atlas, No. 5. 

'> Memorandum by Dall, LT. 8. C. C. App., 106. 



ARGUMENT OF THE UNITED STATES. 59 

to the bead of the channel, then it would >seeni to follow that, 
whether the mountains exist or not, that point on the degree nearest 
the supposed mountains was intended to be the point northwai'dly 
of the head of the Channel, to which the line should run, and that 
such point is to be determined by the apparent locality of the 
mountains which it is demonstrated they had in mind, and not by 
some other mountains which they clearly did not have in mind. 
The line was to be drawn "'au Nord'' to the degree, and '"''de ce 
dernier point la ligne de demarcation suivra la crete des montagnes." 

The maps showed that the crest of the mountains, the head of the 
channel, and the tifty-sixth degree, did not exactlj^ coincide. 'There 
was uncertainty' as to the mountains, but none as to the fifty-sixth 
degree, and none as to where a line running up the channel prolonged 
would reach it. This point was, therefore, to be determined by the 
intersection of the prolonged line with the parallel, and " dece dernier 
point," the line was to follow the crest of the mountains. Manifesth^, 
the situation of the mountains being uncertain, the line was to be 
drawn from the determined point to the crest, and thence along the 
crest. 

In the British Case is the following : 

It is submitted that the point in the 56th parallel to which the line should be 
drawn is the point from which it is possi])le to continue the line along the crest of 
the movintains situated parallel to the coast, and, accordingly, that the point at 
which the 56th parallel and the crest of the coast mountains coincide is the point in 
question." 

This proposition entirely ignores the fact that the point was fixed 
northwardly, and on the fifty-sixth parallel with reference to the 
supposed existence of a chain of mountains near where the head of 
the channel is nearest to the fifty-sixth degree. 

The fact that no such chain exists in that vicinity, does not aft'ect 
the location of the point. For the purpose of such fixation of this 
point by the negotiators, mountains assumed to exist and approxi- 
mately located by the parties, were just as potential as if they had 
been real mountains. 

But the unsoundness of the proposition put forward in the British 
Case becomes manifest bv one simple test. 

If we must seek the point where "it is possible to continue the line 
along the crenj^t of the mountains," how will the point be fixed if it 

«B. C, p. 69. 
4574—03 5 



60 AROUMENT OF THP: UNITED STATES. 

shall be determined that the mountains contended for in the British 
Case do not fulfill the conditions of the treaty? If it shall ])e deter- 
mined that there are no such mountains within ten marine leagues of 
the coast, how can the point on the fifty-sixth parallel be fixed? Man- 
ifestly according to the proposition laid down, the point can never be 
determined, unless mountains such as are contemplated })y the treaty 
shall ))e found within ten marine leagues of the coast, with a crest 
coincident with the fifty-sixth degree of latitude. 

But the point was to be determined, whether or not, there was a 
mountain crest within ten marine leagues of the coast. The second 
paragraph of the fourth Article provides: 

Que partout ou la crete des montagnes qui s'etendent dans une direction jiarallele 
a la Cote depuis le 56me degre de latitude Nord au point d' intersection du 141me 
degre de longitude Guest, se trouverait A la distance de plus de dix lieues marines de 
" r Ocean, etc." 

This provided for the contemplated condition that, from the point 
fixed on the o6th degree, there might be no mountains along the crest 
of which the line should be drawn. In such event the point was 
none the less to be fixed, and from it the line was to be drawn 
parallel to the coast. The boundar}^ delimitation was not to fail if 
there was no crest of mountains parallel to the sinuosities of the 
coast, and within ten marine leagues of the ocean. The treaty was 
to be capable of being carried into ettect, whether such mountains 
as those contemplated by it existed within the ten marine leagues 
or not, and also whether or not any mountains whatever existed in 
that region. 

If the tribunal, from the language of the treaty cau determine 
where the point on the 56th degree should be, in the event that they 
shall find against the British contention as to the crest along the 
coast mountains being west of the head of Portland Channel, it is 
manifest that finding "the point from which it is possible to con- 
tinue the line along the crest of the mountains" from the 56th par- 
allel, is not a condition precedent to determining where the line 
drawn from the head of Portland Channel shall meet the fiftA-sixth 
parallel, and that it has nothing whatever to do with fixing that 
point. 

The proposition when tested by the result, as worked out in the 
British Case, is wholly inadmissible. The line as drawn cuts otf a 

«U. S. C. App., 13. 



ARGUMENT OF THE UNITED STATES. 61 

point on Bell Island, and gives a portion of the mainland coast to 
Great Bi-itain. "Any theory that so eventuates cannot stand luider 
the treaty, for there is no possi))le construction of the treaty which 
will enable Great Britain to claim any part of any island opposite the 
mainland coast or any part of the mainland coast." 

NINTH. 

Fifth Question. "In extendixc; the line of demarcation 

NORTHWARD FROM SAID POINT ON THE PARALLEL OF THE 56tH 
DEGREE OF NORTH LATITUDE:, FOLLO^^^NG THE CREST OF THE 
MOUNTAINS SITUATED PARALLEL TO THE COAST UNTIL ITS INTER- 
SECTION WITH THE 141st degree OF LONGITUDE WEST OF GREEN- 
WICH. SUBJECT TO THE CONDITION THAT IF SUCH LINE SHOULD 
ANYWHERE EXCEED THE DISTANCE OF TEN MARINE LEAGUES 
FROM THE OCEAN, THEN THE BOUNDARY BETWEEN THE BRITISH 

AND THE Russian territory should be formed by a line par- 
allel TO THE sinuosities OF THE COAST AND DISTANT THERE- 
FROM NOT MORE THAN TEN MARINE LEAGUES, WAS IT THE INTEN- 
TION AND MEANING OF SAID CONVENTION OF 182.5 THAT THERE 
SHOUUD REMAIN IN THE EXCLUSIVE POSSESSION OF KuSSIA A CON- 
TINUOUS FRINGE OR STRIP OF COAST ON THE MAINLAND. NOT EX- 
CEEDING TEN MARINE LEAGUES IN WIDTH, SEPARATING THE BRIT- 
ISH Possessions from the bays, ports, inlets, havens, and 

WATERS OF THE OCEAN, AND EXTENDING FROM THE SAID POINT ON 
THE 56th degree OF LATITUDE NORTH TO A POINT WHERE SUCH 
LINE OF DEMARCATION SHOULD INTERSECT THE lllST DEGREE OF 
LONGITUDE WEST OF THE MERIDIAN OF GREENWICH?" 

The discussion of the fifth question necessarih^ involves a considera- 
tion of the essential features of the sixth and seventh questions, which 
are as follows: 

Sixth Question. ' ' If the foregoing question should be 
answered in the negative, and in the event of the summit 
of such mountains proving to be in places more than ten 
marine leagues from the coast, should the width of the 
lisiere which was to belong to russia be measured (1) from 
the mainland coast of the ocean, strictly so-called, along a 
line perpendicular thereto, or (2) was it the intention and 
meaning of the said convention that where the mainland 
coast is indented by deep inlets forming part of the terri- 

« British Atlas, No. 37. 



62 ARGUMENT OF THP: UNITED STATES. 

torial wateks of russia, the width of the lisieke was to be 
measured (a) from the line of the general direction of the 
mainland coast, or (b) from the line separating the waters 
of the ocean from the territorial waters of kussia, or (c) 
from the heads of the aforesaid inlets?'' 

Seventh Question. "What, if any exist, are the mountains 
referred to as situated parallel to the coast, which moun- 
tains, when avithin ten marine leagues from the coast, are 
declared to form the eastern boundary?" 

The United States contends that the answer to the Fifth Question 
should be in the affirmativ^e, and Great Britain contends that it should 
be in the negative. 

Question Five is, whether or not, looking- to all that is admissible 
under the Treaty, there is a demonstration that, according to the 
"original and effective understanding of the parties," it was "the 
intention and meaning of said Convention of 18!25, that there should 
remain in the exclusive possession of Russia a continuous fringe or 
strip of coast," as above indicated. 

The "Parties" meant are, Russia, Great Britain and the United 
States, for the reference in the paragraph is to the "Parties to" 
said Treaties of 1S25 and 1867. By " original and effective under- 
standing of the parties," must be meant not only the interpretation 
of the treat}^ by reading the text in the light of all the facts surround- 
ing and known to the negotiators and the contemporaneous exposition 
given by them, but also the practical interpretation put upon the 
Treaty by the parties, that is Russia, Great Britain and the United 
States, as shown by their affirmatiA'e acts respectively, and also b}' 
the inaction of an}' of the parties indicating acquiescence in an inter- 
pretation. 

The expression in the treat}' is, "original and effective understand- 
ing." It must be assumed that significance was intended to be given 
to both words "original" and "effective," and that both were deemed 
necessary to full}^ express the idea had in view, which seems to l)e 
that, not only the language of the treaty and of the negotiations lead- 
ing up to it must be looked to for the purpose of finding out the 
meaning, but that what the parties did in pursuance of the treaty 
must also be looked to, and that from all of this the meaning must be 
evolved. 



ARGUMENT OF THE UNITED STATES. 63 

The Fifth Question does not involve any understanding as to the 
actual location of the line on the ground in the interior, Init only its 
relevancy to the entire coast line of the bays and inlets. The ques- 
tion can ))e answered independently that the understanding- was that 
the line should be drawn around all the heads of such waters. This 
can be done without tixing where it shall actuall}' be located. 

The ciuestion does not involve the answer to the question as to 
whether or not the line, in the absence of mountains responding to 
the conditions of the Treaty within ten marine leagues of the coast, 
shall ])e drawn the full distance of ten marine leagues. 

That answer is dependent upon considerations that do not nec- 
essarily affect the answer to the Fifth Question. The Fifth Question 
can be fully answered without touching either of these propositions. 

The British Case seems to concede that, if the line is to be drawn, 
not along the mountains, but parallel to the coast, it shall be drawn 
ten marine leagues from the coast. It says: 

It is to be observed that this Treaty contemplates a shore-line such as admits 
of another line being drawn parallel to its sinuosities at a distance of 10 marine 
leagues. " 

It may appear, either from a construction of the Treaty alone, or 
from such construction taken in connection with the subsequent 
conduct of the parties, that it was the intent of the Treaty that 
Russia was to have, at all events, a continuous strip of the coast, 
and that this was such a clear and dominating feature of the treaty, 
that all doubtful language is to be regarded as subordinate to it, and 
to be construed so as to carr}' out this intent. 

If such intent shall be demonstrated, it must prevail, and the 
actual location of the territorial boundary line must be a subordinate 
consideration. 

It is contended for the United States: 

1. That when the Treaty was made between Russia and Great 
Britain, V)oth understood that from the fifty-sixth degree of North 
latitude to the 141st degree of longitude west of Greenwich, Russia 
was to have a continuous strip of coast separating the British pos- 
sessions from all the waters of the ocean. 

2. That this understanding was made manifest by them, as shown 

by their subsequent conduct. 

^ ^ 

"B. C, 72. 



64 ARGUMENT OF THP: UNITED STATES. 

3. That through their conduct .such was the common understand- 
ing of the civilized world. 

•i. That with such understanding, and relying on it, the United States 
purchased this territor}^ of Russia in good faith, and paid for it. 

5. That the Linited States entered into possession of the territorj^ so 
purchased, and exercised jurisdiction over it from 1867, down to the 
present time; that there was such possession and exercise of jurisdic- 
tion over the inland waters now in dispute and the coasts thereof, as 
to show at all times that, they were claimed by the United States, as 
having passed to it I)}' the said treaties of 1825 and 1867, and that 
Great Britain had no sovereignty over such waters and coasts; that 
Great Britain never in any way set up any claim to any part of such 
waters or coasts until 1898, and'that this course of conduct on her part 
demonstrates that it was her original and eti'ective understanding of 
the ti'eaty of 1825, that the Usiere shoidd continue unbroken around 
the heads of all the bays and inlets. 

The present controvers}^ arises out of conflicting views as to what 
the parties meant by "cote," "la crete des montagnes," " I'Ocean," 
"//.9/^/v," and "sinuosities." 

There is also a controversy as to whether or not there are moun- 
tains, such as are referred to in the treaty, situated within ten marine 
leagues of the coast. With much labored technical skill, sustained by 
a lively imagination, it is claimed that a mountain crest can be segre- 
gated from the jumble of mountain peaks, in disarra3^ in proximity 
to the coast, conformable in all essential qualities to the conditions of 
the treat}'. 

This line on a mountain crest, thus created by an arbitrar}' selec- 
tion of disconnected peaks, is drawn on the British map so as to be 
parallel to a part of the coast, that is, what is stvled in the British 
Case the general coast, or the mainland coast. Mountain summits are 
selected and connected with reference to this coast. The coast as an 
entirety, is cut up to match the mountains, and so by connecting peaks 
together, and denominating this a mountain crest, and disconnecting 
the natural coast into broken strips, a very happy combination is 
thought to be brought about, by which an original and effective under- 
standing of the treaty of 1825 that no one ever dreamed of until 
more than fifty j^ears after the treaty was made, is claimed to be 
demonstrated. 



argument of the united states. 65 

The "coast" referred to in the treaty, to which the moun- 
tains WERE TO BE PARALLEL, AND TO THE SINUOSITIES OF WHICH, 
IF THE MOUNTAINS FAILED, THE LINE WAS TO BE DRAWN PARALLEL, 
WAS THE COAST OF ALL OF THE INTERIOR WATERS, SUCH AS TaKU 

Inlet and Lynn Canal. 

The United States claims that the coast is an unbroken coast, and 
that this is the dominating factor, that the coast, as meant by the 
treat}', must tirst l)e determined, and that there can be no mountains 
parallel to the coast, as called for by the treaty, which are perpendicu- 
lar to or trend across the coast leading* around the heads of the bays 
and inlets, and that all mountains which so trend are to be rejected 
from consideration. If the coast, or as the treaty expressed it '' lisiere 
de cote," is the controlling feature, then there will be no difficulty as 
to the meaning of '"sinuosit}'." The line must be parallel to the coast 
that is meant and must follow the sinuosities of that coast. No moun- 
ains and no crest of mountains can divide such coast so as to deprive 
the United States of any part of it. 

When the meaning of ""coast'' shall be determined, the actual 
location of the line will be a secondaiy proposition. Just where it 
will be situated with reference to the heads of the bays and inlets, 
is entirely subordinate to the proposition that it must, at all events, 
be situated somewhere to the interior of the heads of such bays and 
inlets. 

The Treaty of 1825, in the third Article, provides that "la ligne 
de demarcation suivra la crete des montagnes situees parallelement 
a la cote." The fourth Article, paragraph two, provides that, 
"partout oil la crete des montagnes qui s'etendent dans une direction 
parallele a la cote * * * une ligne parallele aux sinuosites de la 
cote," etc. 

It is contended b}- the United States that the word "cote'' thus 
used means all the land bounding bays and inlets as well as that 
bounding the more open waters. 

It is contended by Great Britain that the negotiators in using the 
word "cote" intended it to apply only to what in the British Case is 
st3ded in one place as "coast outside of narrow inlets," in another 
place, the "general coast," and in another "the general trend of 
coast" and in another "the mainland coast of the ocean," and that it 



66 ARCIUMENT OF THE UNITED STATES. 

was intended that it should not apply to the .shores of such waters as 
penetrate farther to the interior than a boundary line, drawn froui 
headland to headland, under the hiw of Nations tixing- the jurisdiction 
of a country over territorial waters." 
The language of the treaty is: 

Se troiiverait a la distance de plus de dix lieues marines de I'Ocean. 

The United States contends that the word ''ocean" as here used is 
synonymous with ""cote." 
Great Britain says in its case: 

It is clear that " cote " and " ocean " refer to the same thing. '' 

Thus the controlling word is ''coast.'' When that meaning as 
understood by the parties is fixed, the meaning of ''ocean,'' bjr the 
claims of both parties becomes coincident with it. Its sinuosities 
must be conformed to by the Ii)ie. 

THE MEAMNG OF THE WORD ''COTE" AS UNDEBSTOOD BY THE PARTIES PRIOR TO 
THE XEGOTIATIONS OF THE TREATY OF 1S2B. 

The meaning has its foundations in the Ukase of September ■!, 
1821, which was the irritant that bi'ought about the controversy 
that was concluded b}- the treaty. 

THE MEANING OF COAST AS DEFINED IN THE IKASE OF SEPTEMBER i, JS21. 

In 1821 the Emperor Alexander issued an Ukase addressed "unto 
all Men " for the purpose of establishing rules in respect of the 
northwest coast of America. 

The first rule was as follows: 

The pursuits of commerce, whaling, and tishei'3% and of all other industry on 
islands, posts, and gulfs, including the whole of the northwest coast of America, 
beginning from Behring Straits to the 51° of northern latitude, also from the 
Aleutian Islands to the eastern coast of Siberia, as well as along the Kurile Islands 
from Behring Straits to the South cape of the Island of Urup, viz., to the 45° 50^ 
north latitude, is exclusively granted to Russian subjects. <' 

This in terms includes "the whole of the northwest coast of 
America, beginning from Behring Straits to the 51st degree of 
northern latitude." 

« B. C, 72, 73, 74, 77. f U. S. C. A pp., 25-26. 

bB.C, 72. 



ARGUMENT OF THE UNITED STATES. 67 

The second rule was as follows: 

It i8 therefore prohibited to all foreign vessels not only to land on the coasts 
and islands belonging to Russia, as stated above, but also, to approach them 
within less than 100 Italian miles. The transgressor's vessel is subject to confis- 
cation along with the whole cargo. » 

Thus all foreign vessels were by this rule forbidden to land upon 
any of the coasts descrilied in the tirst rule. 
The fourteenth rule was as follows: 

It is likewise interdicted to foreign ships to carry on any traffic or barter with 
the natives of the islands, and of the north-west coast of America, in the whole 
extent here above mentioned. A ship convicted ot this trade shall be confiscated. « 

This is an interdiction of trade with the natives "of the north- 
west coast of America in the whole extent" from Behring Sea to 
the 51st degree north latitude. 

Russia thus asserted jurisdiction over every part of the north- 
west coast down to the 51st degree and forbade trade with the 
natives of this coast throughout "the whole extent." 

No one would have the hardihood to deny that, by ''"cote", Russia 
here meant the entire shore line, including that of bays, inlets, and 
all interior salt waters. It cannot be said that Russia only intended 
to interdict trade on the mainland coast, or on the interior waters 
up to a point where the headlands were not more than six miles 
apart, or that she wanted to control the trade with the natives living- 
on the coast bordering the open sea, but not with the natives living- 
far up the Lynn Canal, Taku Inlet, and other like waters. If it 
be conceded that Russia intended that this ukase should appl}^ as 
in terms it is expressed, to "the whole extent of the coast," and "the 
natives of the islands and of the north-west coast of America in the 
whole extent here above mentioned," then we start the inquiry before 
us with a full understanding of the meaning attached by Russia to 
the term "cote" as applied to such waters as those above indicated, 
when she provoked the controversv that was closed b}^ the treaty. 
When Russia made a treat}" in respect of these ver}" rules, and of 
this very territory, and of these ver}^ coasts, it is inferable, unless 
the contrary shall be shown, that she did not intend to use the word 
"cote" in the treaty in a different sense from that in which she had 

used it in the ukase. 

^ 

«U. S. C. App.,25-26. 



68 ARGUMENT OF THE UNITED STATES. 

THE UNDERSTANDISG OF THE VMTED STATES AND GREAT BRITAIN THAT THE 
UKASE APPLIED TO THE ENTIRE COAST. 

This ukase was officiallj' coniniunicated to the governments at Wash- 
ington and London/' 

Sir Charles Bagot, in transmitting an English translation of it to the 
Marquis of Londonderry, also sent as he himself expresses it, "a map 
of the northwest coasts of America,"'' published by Russia.^ 

This map is No, 5 of the Atlas of Great Britain, and shows all the 
coasts of the bays, inlets, etc., now in controversy. The Marquis of 
Londonderr}^ understood that, by the description used in the ukase, 
of the " whole of the northwest coast of America," Russia asserted 
"exclusive sovereignty over the territories therein described." In 
his letter to Count Lieven of January IS, 1822, he says: 

In the meantime, upon the subject of this Ukase generally, and especially upon 
the two main principles of claim laid down therein, viz., an exclusive sovereignty 
alleged to belong to Russia over the territories therein described, as also the exclu- 
sive right of navigating and trading within the maritime limits therein set forth, his 
Britannic Majesty must be understood as hereby reserving all his rights, not being 
prepared to admit that the intercourse which is allowed on the face of this instru- 
ment to have hitherto subsisted on those coasts, and in those seas, can be deemed 
to be illicit, or that the ships of friendly Powers, even supposing an unqualified sov- 
ereignty was proved to appertain to the Imperial Crown in these vast and very 
imjaerfectly occupied territories, could, by the acknowledged law of nations, be 
excluded from navigating within the distance of 100 Italian miles as therein laid 
down from the coast, the exclusive dominion of which is assumed (but, as His 
Majesty's Government conceive, in error) to belong to His Imperial Majesty the 
Emperor of all the Russias. '' 

The elfect of the meaning of "cote," as used in the Ukase, was set 
forth b_y Pelly, Deputy Governor of the Hudson's Bay Companj^, 
whose judgment was stimulated by the keenest interest to protect 
that company's trade. In a letter to the Marquis of Londonderry 
March 27, 1822, he said: 

The fur trade of Great Britain, by an Act of last Session and grant from His 
Majesty, is vested in the Hudson's Bay Company; I cannot, therefore, refrain 
from calling your Lordship's attention to this matter as of considerable impor- 
tance at the present moment, and not unlikely to lead to very unpleasant occur- 
rences at some future period, if no notice is taken of these proceedings of the 

"U. S. C. App., 31, 95. '■U. S. C. App., 105. 

f'U. S. C. App., 101-102. 



ARGUMENT OF THE UNITED STATES. 69 

Russian and American Governments, the effect of which woulil be to exclude 
British subjects from the northwest coast of America, and a valual)le trade in the 
interior/' 

Mr. Stratford Canning- understood it lilcewi.se. In a letter of Feb- 
riuuT 19, IS'2'A, addressed to the Marquis of Londonderry, he said: 

I was informed tliis morning by ]\Ir. Adams that the Russian Envoy has, within 
the last few days, communicated officially to the American Government, an Ukase 
of the Emperor of Russia, which has lately appeared in the public prints, appropri- 
ating to the sovereignty and exclusive use of His Imperial Majesty the noi'thwest 
coast of America down to the 51st parallel of latitude, etc. ^ 

To the same effect was the understanding' of the Duke of Welling- 
ton. In a memorandum enclosed by hira under cover of a letter of 
November 28, 1822, addressed to Mr. G. Canning, he savs: 

In the month of September, 1821, His Imperial Majesty, the Emperor of Russia, 
issued an Ukase, asserting the existence in the Crown of Russia of an exclusive 
right of sovereignty in the countries extending from Behring's Straits to the 51st 
degree of north latitude on the west coast of America, etc. '' 

John Quinc}' Adams, Secretary' of State of the United States, 
understood at that time that Russia's claim to the coast embraced the 
entire coast, including the sinuosities of the inlets. 

In a letter to Mr. Middleton, American Minister at St. Petersburg. 
July '22, 1823. he said: 

From the tenor of the Ukase, the pretentions of the Imperial Government extend 
to an exclusive territorial jurisdiction from the forty-fifth degree of north latitude on 
the Asiatic coast to the latitude of fifty-one north on the western coast of the Ameri- 
can continent; and they assume the right of intei'dicting the nnvlgalion and the 
fishery of all other nations to the extent of 100 miles from the whole of that 
coast. . .'I 

His understanding that the claim of Russia embraced the entire 
coast is very important, when considered in connection with the fact 
hereinafter brought out, that the United States acquired rights of 
trade with the natives inhabiting those portions of the coast now in 
controversy, by the Treaty of 1821, which rights Great Britain 
expressly insisted upon securing for herself in identically the same 
form, in the Treaty of 1825. 

These rights are in direct conflict with the pretension that Great 
Britain, b}^ the Treaty of 1825, acquired territorial sovereignty over 



ffU. S^C. App., 107. cU. S. C. App., 11 ;i 

6U. S. C. App., 106. fl U. S. C. App., 48-49. 



70 argump:nt of the united states. 

an}' part of these interior coasts above 54'-^ 40' nortli latitude. Thus 
it is perfectly plain that by the claim of Russia to sovereignty over 
all the northwest coast of America above 51 deg-rees north latitude 
up to Bering- Strait, and by interdicting- trade with the natives of 
that coast throughout its whole length, Russia, Great Britain and 
the United States understood distinct W that by "coast" was meant 
the entire boundary of all of the waters of the bays and inlets in 
controversy. 

CLAIM OF GREAT BRITAIN TO NORTHWEST COAST. 

Great Britain set up a vague, indetinite claim in conflict with the 
claim of Russia. It is indicated by Mr. Belly, Deputy Governor of 
the Hudson's Bay Company to Mr. George Canning in a letter of 
September 25, 1822. It is based upon the occupancy by the Hud- 
son's Bay Company of trading stations in the interior of the coun- 
try then known as New Caledonia, which lie describes as l)eing west 
of the Rocky Mountains and extending from about 49-' latitude north 
to about 60° north latitude. He indicates the location of these sta- 
tions, but none of them are near any part of the coast. He adds: 

By these means an extensive trade is carried on with all those Indian tribes which 
inhabit the country from about 60° north latitude as far south as the month of 
Eraser's River, which is in about 49° north latitude, and between the Rocky 
iSIountains and the sea. 

The British fur traders have never met witli the traders of any other nation in 
that country, and it does not appear that any part of it has ever been occupied 
by the subjects of Russia or of any other foreign Power. 

All the considerable rivers which fall into the Pacific Ocean in this extent of 
coast have not yet been sufficiently explored to ascertain whether any of theni 
are navigable with large boats, and have safe harbours at their discharge into 
the sea; the furs procured in that country have therefore been brought to Eng- 
land down the Peace River and through the Hudson's Bay Company's territories. 
But it is probable that, in such an extent of coast, some practicable communica- 
tion with the sea will be discovered which would save the expensive transport 
of goods and furs through the interior of America. . . . 

I have thus given a brief outline of the British trading stations on the northwest 
coast of ximerica, etc.« 

Although he designates these stations as being "on the northwest 
coast of America," not one of them is situated west of the 127th 
degree of west longitude. The nearest one indicated is about the 

« U. S. C. App., 109-110. 



ARGUMENT OF THE UNITED STATES, 71 

12Tth degree, wliicli is nearly four degrees east of the liead of Port- 
land Channel. 

He speaks of trade carried on with all those Indian tribes inhabit- 
ing- that country and of the "rivers which fall into the Pacific Ocean 
on this extent of coast." 

It is manifest from his letter that he understood that '"this extent 
of coast" included all those waters into which "all the considerable 
rivers debouched," such as Taku Inlet and Lynn Canal, and that he 
regarded these waters as part of the Pacific Ocean. 

On the basis of this letter the Duke of Wellington in the memo- 
randum enclosed Avith his letter of Novend)er 28, 1822, to Mr. 
Canning, said: 

Now we can prove that the English Northwest Company and the Hudson's Bay 
Company have for many years estabhshed forts and other trading stations in a 
country called New Caledonia, situated to the west of a range of mountains called 
Rocky Mountains, and extending along the shores of the Pacific Ocean from latitude 
49° to latitude 60°." 

He adds: 

Thus, in opposition to the claim founded on discovery, the priority of which, 
however, we conceive we might fairly dispute, we have the indisputable claim of 
occupancy and use for a series of years, which all the best writers on the laws 
of Nations admit is the best founded claim to a territory of this description. 

Objecting as we do to this claim of exchisive sovereignty on the part of Russia, 
1 might save myself the trouble of discussing the particular mode of its exercise as 
.set forth in this Ukase, but we object to the mode in which the sovereignty is 
projiosed to be exercised under this Ukase, not less than we do the claim of it." 

CLAIM OF THE UNITED STATES TO NORTHWEST COAST. 

The United States likewise preferred a claim "to the whole coast 
as high as the 61st degree." Sir Charles Bagot. in a letter to Mr. 
G. Canning, of October 17, 1823, wrote: 

Although Mr. Middleton has not communicated to me the instructions which 
he had received, I have collected from him, with certainty what I had long had 
reason to suspect, that the United States, so far from admitting that they have 
no territorial pretensions so high as the fifty-first degree of north latitude and no 
territorial interest in the demarcation of boundary between His Majesty and the 
Emperor of Russia to the north of that degree, are fully prepared to assert that they 
have at least an equal pretension with those powers to the whole coast as high as the 
sixty-first degree, and an absolute right to be parties to any subdivision of it which 
may now' be mad£. ^ 

«U. S. C. App., 11:5. &U. S. C. App., 129. 



72 ARGUMENT OF THE UNITED STATES. 

THE BEGINNING OF THE NEGOTIATIONS. 

With the i.ssues thus made up, and the subject matter of controversy 
fully understood, in exactly the same .sense, b}- all three of the parties, 
the negotiations began. It would not be profitable to devote any 
time to an examination of the relative strength of the several claims 
to the coast in question. Doubtless, for the purpose of driving a 
better bargain, the claim of Great Britain was put forward with con- 
scious extravagance; but this is comparatively unimportant in this 
discussion, as the Treaty of 18-J5 does not purport to express a set- 
tlement of conflicting rights, in any sense, in accordance with the 
way such rights were respectively stated or urged. On the con- 
trary, all questions of right were expressl}' waived. It is, however, 
important to observe that while this was avowed by both Great 
Britain and Russia, Russia at no time, receded from, Invt alwaj's, 
down to the conclusion of the negotiations, asserted her claim of 
actual and undisputed sovereignty over all of the coast north of the 
55th degree. This is significant in connection with determining 
whether or not Russia ever understood that she was abandoning 
to Great Britain any part of the coast over which she had always 
asserted sovereignt3^ 

A declaration of sovereignty made, and never departed from at 
an}' stage of the negotiations, cannot fail to be a strong exponent 
of the understanding by the parties, of the language used for the 
purpose of finally determining their controversy. 

THE NEGOTIATIONS OF THE TREATY OF 1825 DID NOT PROCEED UPON STRICT RIGHT, 
B UT UPON CONSIDERA TIONS OF MUTUAL EXPEDIENCY. 

Count Lieven said to Mr. George Canning in a letter of January 
19, 1S23: 

Before leaving Verona the undersigned was ordered to present to the Govern- 
ment of His Britannic Majesty a new proof of the Emperor's well known feelings 
b}' proposing to His Excellency, Mr. Canning, Chief Secretary of State for Foreign 
Affairs of His Britannic Majesty (without permitting this proposition to prejudics 
the rights of His Imperial Majesty should it not be accepted), that the question 
of strict right be ten)porarily set a.side on the part of both and that all the dif- 
ferences to which the regulation in question has given rise be adjusted by an 
amicable arrangement founded on the sole principle of mutual expediency, to be 
negotiated at St. Petersburg." 

«U. S. C. App., 118. 



ARGUMENT OF THE UNITED STATES. 73 

On thi.s basis the negotiations were taken up by Great Britain. 
Mr. George Canning communicated to Sir Charles Bagot, February 
5, 1823, a coi)y of the note of Count Lieven and requested him to 
proceed to open the discussion.^' 

In a letter from M. Poletica to Count Nesselrode of November 3, 
1823, it is said: 

In the midst of thig argument the British Embassador suddenly suspended the dis- 
cussion in order to tell me that his Government had, after all, no intention of dis- 
cussing the territorial question according to the abstract principles of public law or 
of international law; that that would have the effect of rendering the discussion 
interminable; that the cabinet of London expected a more satisfactory result 
for the two parties interested, from an amicable arrangement which would be 
based only upon mutual consent, and that his instructions had been drawn up in 
that spirit. 

I replied to Sir Charles Bagot that in the matter in question, so far as I could 
foresee the views of the Imperial Government, I believed that I could take upon 
myself boldly to assure him that they were in perfect agreement with those of 
the cabinet of London. I then asked him to tell me the point of demarcation, 
which, in the opinion of his Government, ought to divide the respective posses- 
sions on the northwest coast of America. '' 

In a letter of March 17, 1824, from Sir Charles Bagot to Mr. 
Canning, he said: 

I then laid before them [Count Nesseh'ode and M. Poletica] Count Lieven's 
note to you of the 31st January, 1823, proposing that the question of strict right 
should be provisionally waived on both sides, and that the adjustment of our 
mutual pretensions should be made upon the sole principle of the respective 
convenience of both countries. 

This basis of negotiation being willingly accepted l^y all i:)arties, I stated 
that, etc. '■ 

THE MOTIVES WHICH ACTUATED THE PARTIES WERE THE ADVANTAGES TO BE 
SECURED FROM CONTROLLING THE RIGHTS OF FISHING AND HUNTING AND OF 
TRADE WITH THE NATIVES ALONG THE COAST, AND THE QUESTION OF TERRI- 
TORIAL SOVEREIGNTY WAS DIRECTED TOWARD SECURING THESE RIGHTS AND 
NOT MERELY DOMINION OVER AN EXTENT OF LAND. 

At that time no gold had been discovered in that region, and no 
question of mineral values was ever mooted in any way by an}' of 
the negotiators, or by the representatives of the trading companies 
of Russia, and Great Britain, which were rivals in that part of the 

«U. S. C. App., 119. cU. s. c. App., 154. 

&U. ». C. App., 140. 



74 AKGLTMENT OF THE UNITED STATES. 

world. The eountry along the whole of the northwest coast of 
America was known to be bleak, inhospitable, mountainous and 
inaccessible, offering then no inducenients for the acquisition of 
land for an3'thing that might be gotten out of it, or produced by 
it. It was trading in furs, and the development of fisheries that 
induced the adventurous spirits of that age to exploit that remote 
region. The j)articular advantage that could ai'ise from sovereignty 
over the coast in question was, from control of, and exclusive 
enjoyment of, the fur trade with the Indians inhabiting it. 

It was known to all parties during the pendenc}- of the negotia- 
tions for the treaty that the natives, with whom such trade was 
carried on, lived along the rivers, bays and inlets. Thus with a 
full understanding as to what was meant, by all the parties, by the 
expression "the whole of the northwest coast," and also with a full 
understanding of the advantages that were to be secured through 
the exercise of territorial sovereignt}^ in appropriating exclusively 
the trade with the inhabitants, they proceeded to frame the treat}' 
upon the sole principle of the "respective convenience of both 
countries."" 

There are two important and controlling ideas which must be kept 
in view in interpreting the language of the parties. Great Britain 
had as her main object the disavowal by Russia of her claim of 
control over the waters within 100 Italian miles of the coast, while 
Russia, having at the very outset privately declared her purpose of 
making such disavowal, sought to secure by the treaty the rights 
which she had asserted over the whole extent of the coast, at least 
from the 55th degree northward. It being understood by both 
parties that, in any event as to the territorial boundaries, the 
objectionable features of the Ukase as to the 10<) mile limit would 
be withdrawn. Sir Charles Bagot, in his letter to Mr. George Can- 
ning of March 17, 1824, stated the object had in view by the 
respective parties as follows: 

This basis of negotiation being willingly accepted by all parties, I stated that, 
so far as I understood the wishes and interests of Russia, her i)rincipal object 
must be to secure to herself her fisheries upon the islan<ls and shores of the 
northwest coasts of North America, and the posts which she might have already 
established upon them; that, on the other hand, our chief objects were to secure 

«U. S. C. App., 154. 



ARGUMENT OF THE UNITED STATES. 75 

the posts upon tlie continent l)el()n.u;in.<i to the Hudson Bay Company, the 
embouchures of such rivers as might afford an outlet for our fur trade into the 
Paoitic, and the two banks of the ^Mackenzie River; that, in the belief that such 
were our respective objects, I would propose as our boundary a line drawn 
through Chatham Straits to the head of Lynn Canal, thence northwest to the 
140th degree of longitude Avest of Greenwich, and then along that degree of 
longitude to the Polar Sea/' 

Ho shows tluit he eomniuiiicated to the Russian j'epresentative 
this undei'standing- that, the wishes and interests of Russia were 
to secure herself in respect of the "shores of the northwest coast 
of North America." He stated some of the objects very clearh^, 
but he made no reference to the trade with the Indians inhabiting 
the coast, which was expressl_y and exclusively reserved in the 
Ukase. It was made manifest then, and in the outcome of the 
treaty, that his proposition ]\v no means secured to Russia, her 
fisheries upon the islands and shores upon the northwest coast of 
America, and that it was by no means sufficient to protect the 
trade, which was one of the main objects she had in view. 

CERTAiyTY H'.l.s' VESIRKD IX THE TREATY AXI) THE PREVEXTIOX OF AXY 
DISAGREEARLE HISC'U.SSIOX IX THE FUTURE. 

It was apparent throughout that both parties were desirous that 
the controversy should be definitely settled and that the Ijoundaiy 
should be fixed with certainty. In a letter of Sir Charles Bagot to 
Mr, George Canning August 19, 1823, he sa3^s: 

I have suggested to him [Count Xesselrode] that this settlement may per- 
hajis be best made by convention, and I have declared our readiness to accede 
to one framed either upon the principle of joint occupancy or demarcation of 
boundary as the Russian Government may itself prefer, intimating, however, 
that in <tur view, the latter is by far the most convenient. Count Nesselrode 
immediately and without hesitation declared himself to be entirely of that 
opinion, and he assured me that the chief if not the only object of the Imperial 
Government, was to be upun some certainty in this respect.^ 

Count Lieven wrote to Count Nesselrode that Mr. Canning, when 
he gave him a cop}" of the dispatch accompanying the ratification 
of the convention, and called his attention to the insistence of the 
English government that the line should be fixed b}- a distance 
limit, and not merel}^ by the mountain crest, assured him that it 

"U. S. C. App., 154. &U. S. C. App., 12G-127. 

4574—08 6 



76 ARGUMENT OF THP: UNITP:D STATES. 

aro.se "solely from a sincere desire to prevent the reeurrence of 
any disat>reea1)le discussion in future." 

The Russian view is made entirely clear in the letter from ]M. 
Poletica to Count Nesselrode of November 23, 1823. He says that 
he had conferred with Count de Laml)ert, the representative of the 
interests and wishes of the Kussian-American Company, and that: 

In fixing tlie longitude Count de Laml>ert had mainly in view the estaljlis^hnient 
of a barrier at which would he .stopped, once for all, to the north as to the west 
of the coast allotted to our Aniei'ican Company, the encroachments of the English 
agents of the amalgamated Hudson Bay and Northwest English Company, whom 
a moi'e intimate acquaintance with the country traversed l)y the ]*Iackenzie River 
might easily bring in the course of time into tiie neighborhood of our establishments.^' 

With this desire on both sides to secure certainty, and to pre- 
vent disagreeable differences in the future, it is not to be accepted 
without the strongest proof, that they intended to give to the word 
"coast," which was the most important feature of the territorial 
branch of the treaty, a new, or unusual, meaning. 

THE MEANING OF " COTE " AS SHOWN BY THE NEGOTIATIONS. 

THE FIUST ,'<UGGESTIOX ,1.S TO A LISE. 

Sir Charles Bagot, in a letter to Mr, George Canning of Augu.st 
19, 1S23, says that, in an interview with Count Nesselrode, he told 
him that, the British pretensions had, he believed, always extended 
to the 50th degree of north latitude, 1>ut that a line of demarcation 
drawn at the oTth degree would be entirely satisfactory to Great 
Britain.^ 

So far as the record show's, this is the first definite suggestion in 
regard to a division line. It does not appear that any indication was 
given as to how he proposed the line .should l;)e drawn northwardly 
on the continent. 

THE SECOyj) SUGGESTIOX As TO A 7.iXi;. 

The second suggestion appears to have been made by M. Poletica 
to Sir Charles Bagot. In a letter from him to Count Nesselrode 
of October 17, 1S23, he says: 

This point having been explained, Chevalier Bagot requested me to inform him 
what, in the opinion of the Imperial Government, should he the line of sepai'a- 

«U. S. C. App., 137-138. ''U. S. C. App., 127. 



AEGUMENT OF THE UNITED STATES. 77 

tioii Ijetween our possessions on the northwest coast of America and those which 
England thought herself entitled to claim. I thought that it would be better to 
meet the question frankly. Consequently, avoiding circumlocutions [I said], that 
the Imperial Government would think that it had made all the concessions 
required by its moderation a)id its earnest desire to maintain a good understand- 
ing with all foreign powers by fixing the boundarj' between the Russian and 
English possessions at the lifty-fourth degree of latitude, and by giving for the 
longitude such a line as in its prolongation in a straight line toward the pole 
would leave the Mackenzie River outside of the Russian frontier. 

Chevalier Bagot, after a moment's reflection, replied, that the point of demar- 
cation which I had just designated was very far from being that which his Cov- 
ernment Mould have wished to fix." 

THE THIRD SUGGESTION AS TO A LINE. 

The third suggestion was made b}" Sir Charles Bagot. This was 
coimminicated to M. Poletica in October, lS-23. Sir Charles says 
in a letter to Mr. Canning: 

And I then gave him to understand that the British Government would, I 
thought, be satisfied to take Cross Sound, lying about the latitude of 57^°, as the 
boundary between the two powers on the coast and a meridian. line drawn from 
the head of Lynn Canal, as it is laid down in Arrowsmith's last map, or about 
the 135th degree of west longitude, as the boundary in the interior of the 
continent. ^ 

This undoubtedly put all of the west coast of LA^nn Canal in 
Russian territor\\ 

Mr. Canning understood Sir Charles Bagot to mean the 135th 
degree of longittide, for he says in his letter to him of January 15, 

lSi>4: 

But if that were too much to insist upon the 135th degree of longitude as 
suggested by Your Excellency, nortl sward from the head of Lynns Harbour 
might suffice. 

It would, however, in that case be expedient to assign, with respect t(i the 
mainland southward of that point, a limit, say, of 50 or 100 miles from the 
coast, beyond which the Russian posts should not be extended to the eastward. 
AVe must not on any account admit the Russian territory to extend at any point 
to the Rocky Mountains.'" 

This would put l)oth shores of Lynn Canal, throughout its whole 
extent, in Russian territorj". 

«U. S. C. App., 139. <-U. S. C. App., 148. 

&^. S. C. App., 131. 



78 ARGUMENT OF THE UNITED STATES. 

This sug-g-e.stion was made verbally, and there is a difference in 
the accounts given in reg-ard to it l)v Sir Charles Bagot and M. 
Poletica. M. Poletica, in a letter to Count Nesselrode of Novem- 
ber 3, 1823, said: 

Chevalier Bagot then placed hiint^elf before the geographical map which was 
at hand, and traced upon it with his finger a line beginning at the 57th degree 
of latitude, the intersection of which designated the 135th degree of longitude 
west of Greenwich, preciseh^ at the point where our establishment of Novo- 
Archangelsk appears to be/' 

Thus his understanding, as to the 135th meridian, was the same as 
Mr. Canning's. According to his understanding, the suggestion })ut 
both shores of I-(.ynn Canal, throughout its whole ext-ent, in Russian 
territory. 

THE FIRST FORMAL PROPOSAL OF SIR CHARLES BAGOT. 

In the first formal proposition made by Sir Charles Bagot he 
proposed as the boundar}": 

a line drawn through Chatham Straits to the head of Lynn Canal, thence north- 
west to the 140th degree of longitude west of Greenwich, and then along that 
degree of longitude to the Polar Sea. i' 

This likewise assigned the entire coast, on the west side of Ljnm 
Canal, to Russia. 

fOyTRE-PROJET BY RUSSIA. 

In the counter proposition of the Russian plenipotentiaries, the 
proposition made by Sir Charles Bagot was not even entertained. 
The proposal was to begin at the southern extremity of Prince of 
Wales Island, and "follow Portland Channel up to the mountains 
which ))order the coast. '''' That is, follow the channel to the end, 
and thence to the mountains. This meant continuity in that direc- 
tion, until the line should reach the mountains. The mountains 
meant are those " which border the coast"; that is to say, the coast 
of that channel. It seems to have been understood that the Port- 
land Channel reached about the 56th degree, for in the observations 
on the amended proposal of Sir Charles Bagot, the plenipoten- 
tiaries of Russia say: 



('U. S. C. App.,.140. cu. S. C. App.,157 158. 

f' U. S. C. App., 154. 



ARGUMENT OF THE UNITED STATES. 79 

For these reasons the plenipotentiaries of Russia have proposed as limits upon 
the coast of the continent to the south, Portland Channel, the head of which 
lies about (par) the 56th degree of north latitude. « 

It is important to note that this is the first time in the nego- 
tiations that any reference is made to mountains, and coast, and 
to the sinuosities of the coast. None of these words had before 
b^en used. The reference is distincth' to the mountains which 
border the coast at Portland Channel, and from this point ''la 
limite remonteroit le long- de ces montagnes parallelement aux 
sinuosites de la cote.''^ 

It was thus plainly indicated to Great Britain that the head of 
Portland Channel was regarded by them as "* coast." From that 
point the boundary would "ascend along those mountains parallel 
to the sinuosities of the coast." Unquestionably this meant parallel 
to all the coast throughout its extent, which had been claimed by 
Russia, parallel to the coast of waters similar to Portland Channel, 
and parallel, not to a mainland or general coast, but to a sinuous 
coast. 

This proposition was never materiall}" departed from by Russia. 
It was, in all of its essential qualities, embodied in the treat3\ The 
purpose and significance of the words ''coast"" and ''mountains" 
were never modified. 

AMEXDEJ) PROPOSAL BY SIP CHARLES BAGOT. 

In his amended proposal Sir Charles Bagot offered to accept a 
line "along the middle of the channel which separates Prince of 
Wales and Duke of York Islands from all the islands situated to 
the north of the said islands until it touches the mainland (fe/Te 
fi-i'iiii)\ thence extending in the same direction on the mainland to 
a point ten marine leagues from the coast the line would run from 
this point toward the north and northwest parallel with the sinuos- 
ities of the coast, and always at a distance of ten marine leagues 
from the shore, as far as the 140th degree of longitude (Greenwich), 
the prolongation of which it would then follow to the Polar Sea."^ 
Thus after reaching a point in the interior ten marine leagues 
from the coast the line was to run "parallel with the sinuosities 

«y. S. C. App., 161. ''U. S. C. App., 159. 

''U. S. C. App., 158. 



80 ARGUMENT OF THE UNITED STATES. 

of the coast {ind alwa^-s at a distance of ten marine leagues from 
the shore." 

It is here plain that, the sinaous coast referred to was identical 
with "shore," for he uses these words as e<|uivalents, and that 
neither Sir Charles Bagot, nor any one else understood tliat he 
meant, by following a line "parallel with the sinuosities of the 
coast, and always at a distance of ten marine leagues from the 
shore,"" to indicate a coast line drawn from headland to headland, 
and that he meant to throw, by the line indicated, into English 
territory an}' portion of the ba3's and inlets here in controversy. 
He, however, explains his own meaning in indubitable terras. 

The Russian plenipotentiaries explained in their observations upon 
his amended proposal, that the most important advantage was "to 
prevent the respective establishments on the northwest coast from 
injuring each other and entering into collision." Thev added: "It 
was also to their mutual advantage to lix these limits according to 
natural partitions, which always constitute the most distinct and 
certain frontiers."'^' 

In reply to this Sir Charles Bagot said: 

Any argument founded on the consideration of the practical advantage of 
Russia could not fail to have the greatest weight, and the Plenipotentiary of His 
Britannic Majesty did not hesitate to give up, in consequence of this observation 
of the Russian Plenipotentiaries, the line of demarcation which he had first pro- 
posed, to wit: one passing along the middle of Chatham Straits as far as the 
northern extremity of Lynn Channel, and thence to Blount Elias, or to the 
intersection of the 140th degree of longitude; and to offer another which would 
secure to Russia, not only a strip on the continent, opposite the southernmost 
estal)lishment which she possesses on the islands, but also the possession of all 
the islands and waters in its vicinity or which are situated between that estab- 
lishment and the mainland (terra ferme); in short, possession of all that could 
in future be of any service, either to its stabilitj' or its prosperity.'^ 

Thus he explained that he proposes to give, "not only a strip 
on the continent," but also the possession "of all the islands and 
waters in its vicinit}'" and, in short, "possession of all that could 
in future be of any service, either to its stability or its pros- 
perity." All the waters in its vicinity did not mean a division of 
the waters, so that Great Britain would own waters actually touch- 

«U. S. C. App., 1()1. 6U. S. C. App., im. 



ARGUMENT OF THE UNITED STATES. 81 

iiio- the l)()undrtrv line, and stability could not be secured by a 
broken strip on the continent, penetrated Ijy inlets, lyino- parth" 
within the jurisdiction of one country and partly within that of the 
other. Is it at all compatible with this representation on his part, 
that he expected the line to l)e so drawn, and parallel to such a 
coast, that there would be a division of jurisdiction over inland 
waters, and that Great Britain might maintain establishments on 
the coasts of these waters, in absolute contact with the estal^lish- 
ments that Russia mio-ht wish to maintain for trading- with the 
Indians upon adjoining- parts of such coasts ■ 

It is to be observed that he makes no reference to mountains, 
but fixes a constant distance of ten marine leagues from the shore, 
and parallel Avith the sinuosities of the coast, which term up to 
that time had never admitted of any doubt or dispute. 

In explaining his amended proposal to Mr. Canning in his letter 
of :\Iarch 17, 1824, he said: 

I entertained sanguine expectations that such a proposal, cou])led with tlie 
concession of a line of coast extending 10 marine leagues into the interior of 
the continent, would have been considered as amply sutficient for all the legiti- 
mate objects which Russia could have in view, and quite as much as she could 
pretend to with any shadow of real claim or justice." 

When he was speaking of conceding "a line of coast extending 
ten marine leagues into the interior of the continent,*' can it be 
for a moment imputed to him, that by such "line of coast.'' he 
meant that kind of coast line, which under the law of nations, was 
authorized for the purpose of determining territorial waters? If 
he had ever had such an idea, would he not, in view of the well 
understood interests of Russia, which she was seeking to protect 
by the treaty, and of the previous well understood meaning of the 
word "coast,'' have been l)ound in frankness to disclose this new 
meaning which he proposed to attach to the word? Can it be 
assumed that, when he had made two propositions to Russia, by 
which she got the entire western coast of Lynn Canal, and they 
had been rejected by her as unsatisfactory, he meant b}- this propo- 
sition to go thirt}^ miles into the interior away from the coast, and 
then to run the line so as to deprive Russia of a large part of the 
coast of Lynn Canal, for which he had never contended? 

«U. S. C. App., 155. 



82 ARGUMENT OF THE UNITED STATES. 

FJXAL PnOPOSITION OF SIR CUAHLKS ISAdOT. 

His last proposition, proposed March 12, 1S24, was, so far as 
the coast line is concerned, exactly like his third })roposition/' 

FINAL DKVlslOy OF RVSSIAS PLFNII'OTENTIARIEH IN THE XEGOTIAriOXS WITH STB 

CHARLES BAG or. 

The linal decision of the Russian plenipotentiaries was directed 
to that part of the coast opposite the Island of Prince of Wales, 
which island was conceded to Russia by Sir Cliarles Bagot's last 
proposition. There was then no controvers}' as to that portion of 
the coast, north of Prince of Wales Island. It was for this reason 
that the Russian plenipotentiaries said "' That the possession of 
Prince of Wales Island without a slice (porfion) of territory' upon 
the coast situated in front of that island could be of no utilit}" 
wdiatever to Russia.'''' 

Negotiations were l)roken otf, not on account of any diti'erenco 
of meaning attached to the word "'cote,"' not upon any question 
as to its embracing inland waters, but as to how the coast should l)e 
divided on an east and west line. Thus Russia never departed from 
the original line dividing the coast, suggested by her, and showed 
that she would not yield her right to any of the coast north of 54- 
40'. In a letter of April 11, 1821, written to Mordvinof, after the 
negotiations had come to an end, Count Nesselrode, in explaining 
the Russian attitude, said: 

By rights of tirst disrovery, and by that which is still more I'eal, the first 
establishment of liabitations and human activity oui raljinet demands jiosses- 
sion l)oth of the islands and the western coast of America from the furthest 
north to the 55th degree of latitude. <' 

Referring to the ditfei'ences that might arise, he says: 

For this only one expedient ijresents itself; to establish at some distance from 
the coast a frontier line which shall not be infi'inged by our establishments and 
trappers, as also liy the hunters of the Hudson's Bay Company.'' 

In his letter to Count Lieven of April 17. 1824, he reviews the 
negotiations and sums up the situation. He states that the Ukase 
of September 4, 1821, carries ""the domains of Russia on the north- 
west coast of the American Continent down to the 51st degree of 

«U. S. C. App., 16.3. '"U. S. C. App., 167. 

^V. f>. C. Ap].., 164. 



ARGUMENT OF THE UNITED STATES. 88 

north latitude,""^' and that, in the spirit of conciliation, they were 
willing to yield their claims below the 55th degree, excepting that 
it was desired to extend the line far enough south to include the 
whole of Prince of Wales Island. He adds : 

This proposal will assure to us merely a narrow lisiere [strip] upon the coast 
itself and will leave to the English establishments all the needful sjiace for increase 
and extension." 

By the word ''coast," as here used, it cannot be believed that he 
meant anj^thing else than sovereignty over the entire coast, which 
they had insisted upon from the first and had never in the least 
degree departed from. He then proceeds: 

In the first place, no nation has protested against the charter of the Em- 
peror Paul, and this universal silence may and should be regarded as a 
recognition of our rights. The objection is raised that we have not made 
estaljlishments on the northwest coast below the 57th degree of latitude. This 
is true, but during the season of hunting and fishing the coast and the neigh- 
boring waters are exploited by our American Company far beyond the 55th 
degree and 54th degree parallels. This is the only manner of occupation of 
which these localities admit, or, at least, the only one that is iiecessary, with 
colonies founded and organized a little farther north. . . . 

Thus, we wish to keep and the English companies wish to ohfain. This cir- 
cumstance alone is sufficient to justify our proposals." 

As Russia stood immovaT)le in regard to the coast, Great Britain 
acceded to her well understood demands on this vital point, and on 
Ma}^ 29, 1824, Mr. George Canning wrote to Count Lieven that, 
after mature consideration of the dispatches from Count ^Sessel- 
rode, he had the satisfaction of saying that he Avould send such 
instructions, as would meet in a great degree the w'ishes of Russia, 
as to the line of demarcation to be drawn between Russian and 
British occupation on the northwest coast of America, and to admit, 
with certain qualifications, the terms last proposed ])y the Russian 
Government. These qualifications were to consist chiefiy, of a 
more definite description of the limit of the land desired by Russia 
on the continent, and the selection of a somewhat more western 
degree of longitude above Mt. St. Elias, and a precise stipulation 
for ''the free use of all rivers which may be found to empt^^ 
themselves into the sea within the Russian frontier, and of all 

«U. S. C. App., 172-175. 



84 ARGUMENT OF THP: UNITED STATES. 

seas, straits aiul waters whieh tlie limits assioned to Russia ma}^ 
comprehend."'" 

On July 1^. 1824. Mr. Canning- wrote to Sir Charles Bagot, that: 

After full consideration of the motives which are alleged by the Russian (tov- 
erniaent for adhering to their last propositions respecting the line of demarcation, 
etc., * * * it was resolved to consent to take as the line a line drawn from 
the southernmost jjoint of Prince of Wales Island from south to north thi'ough 
Portland Channel, (ill it strikes the mainland in latitude 56 degrees; thence fol- 
lowing the sinuosities of the coast, along the base of the mountains nearest the 
sea to Mount Elias, and thence along the b39th degree of longitude to the 
Polar Sea.'''' 

Thus it .was conceded that the motives alleged by the Russian 
Government should control. It was fully understood that these 
motives were to secure a strip of the coast over which Russia 
had for so long a time claimed sovereignty, and that this strip was to 
be of such a nature, as to be a barrier, except through navigation 
of rivers, from the British side, and that it was to preserve their 
commerce, through the estaldishment of sovereignty over the coasts, 
as the}^ had always been defined. There is no pretext for claiming" 
that Russia ever had in mind a political coast, from which, under 
the laws of nations, the sovereign right was to be projected bcN'ond 
the actual coast, but on the contrary, everything showed that 
Russia contemplated onh", an actual and sinuous coast, forming an 
unbroken strip. 

With this letter ]Mr. Canning transmitted a *' draft con^■ention" 
in French and English, wdiich was submitted to Russia. 

The line to the south was as yet unsettled, but as to some 
things there was perfect accord. The most important of these, in 
view of the present controversy, was what all parties understood 
by the word "coast.'' 

It is therefore of the utmost signiticance to consider the language 
in which he set forth in his draft, what he knew to l)e the under- 
standing of the parties on this point. Note should be taken that 
there had not only never been any controversy as to what the 
parties understood the term "coast" to mean, but that no such 
controversy ever arose at any time, from the ))eginning of the 
negotiations to the execution of the treaty, and that, in respect 

«U. S. C. App., 180. {'V. S. C. App., 181. 



ARGUMENT OF THE UNITED STATES. 85 

of the iiianife.st use of this word, there was never any substantial 
departure from the original draft made by Mr. Canning. 

Ay.iLrsis AS ro the use of the word " coast" in the draft coxvextiox 

SUBMITTED BY MR. CAyXiyG.a 

Tn the preamble he says that the desire is to proceed "sur le 
princ'ipe d'une eonvenance reciproque." Russia had already ex- 
plained that this meant to it an absolute barrier. This explanation 
had been accepted b^- Mr. Canning-, and in his letter submitting 
the draft, he stated that Great Britain had consented, ''after full 
consideration of the motives which are alleged by the Russian 
Government for adhering to their last propositions."''^ These motives 
were not left to conjecture, but were specifically stated. In the 
counter draft l)y the Russian plenipotentiaries they said: 

The prini'ipal motive which constrains Russia to insist upon sovereignty over 
the above indicated lisiere (strip of territory) upon the mainland (terre firme) 
from Portland Channel to the point of intersection of 60 degrees latitude with 
the 139th degree longitude is that, deprived of this territory, the Russian-American 
Company would have no means of sustaining its establishments, which would 
therefore he without any sn[)port (point d'ajipui) and could have no solidity. ^ 

Again, in their observations on Sir C. Bagot's amended proposal, 
thev said: 

On the other hand, the Russian Pleniiiotentiaries have the honor to remind 
hin:!, once more, that without a strip of land on the coast of tJie continent from 
Portland Channel, the Russian Establishments on the adjoining islands would be 
left unsupported, that they would be left at the mercy of those Establishments 
which foreigners might form on the mainland, and that all settlements of this 
nature, from being grounded upon the principle of mutual conveniences, would 
offer only dangers to one of the parties and exclusive gains to the other/' 

It would need no argument to show that everything sought here 
to be guarded against would have i-esulted, if Russia had agreed 
that the Jinlei'e of coast, instead of being continuous around all of 
tlie waters of the sea, had been a lisiere of different parts of coasts 
divided l\v inland waters, with the sovereignty of them to the east 
and north of such dividing lines vested in England. Her motives 
were somewhat elaborated in argument, in respect to that portion 

«r. S. C. App., 182, etReq. « U. S. C. App., 158. 

&U. S. C. App., 181. rfU. S. C. App., Kil. B. C. App., 72. 



86 ARC4UMENT OF THE UNITED STATES. 

of the coast op])o.site Prince of Wales Island in regard to which 
the dispute was then hinging. It is said in Russia's final decision: 

That the i)0S8es!^ion of I'riiK'e of Wales Island without a isliee (portion) of terri- 
tory upon the coast situated in front of that island could 1)e of no utility whatever 
to Russia. That any establishment formed upon said island or upon the sur- 
roundintr islands would find itself, as it were, fianked Ijy the Enjrlish establish- 
ments on the mainland and comj>letely at the mercy of these latter. " 

The same argument brought forward here, in respect to the ])ortion 
of the coast then in dispute, was equally applicable to that portion 
north of it, about which there was no dispute, and it is manifest from 
what was said in regard to the coast opposite Prince of Wales Island, 
that Russia would not have for a moment tolerated any discussion of 
such a broken Jlslere as is now contended for by Great Britain, oppo- 
site any of the islands north of Prince of Wales Island. 

As expressed by Mr. Canning in his draft convention, it was to 
determine "les limites de leurs possessions et eta])lissemens sur la 
cote nord-oucst de TAmerique.'' ^ 

Mr. Canning, who knew full well that Russia had claimed the 
entire coast down to parallel 51 degrees north, and that the expres- 
sion "la cote nord-ouest de TAmerique" w^as never understood b}' 
the parties as meaning merely the mainland coast, or to exclude the 
coast bounding interior waters, could not possil)ly have answered 
the question in the aflii-mative, if he had then been asked, if he 
meant by the use of this term to exclude from consideration all of 
the land l)ordering interior waters, inlets and bays, which were not 
more than ten miles wide from headland to headland. And yet that 
is what this trilninal is now asked to say that he and the other 
parties meant when they solemnly' introduced this expression into 
the treaty. It is not to l)e imputed to him that he used the word 
with a covert meaning. Therefore the purpose was, as he expressed 
it, to determine their respective possessions along the coast, meaning 
by coast, the entire shores of all the bays and inlets, which 
Russia claimed in the Ukase of 1821, without any modilication, 
except that in this adjustment she proposed to recede to the foot 
of Prince of Wales Island. 

That he meant all the coast is conclusively demonstrated l)y his 
use of the word "cote,"" in Article two of his draft: 

«U. S. C. App., UU. ?'U. S. C. App., 182. 



ARGUMENT OF THE UNITED STATES. 87 

He provides that the line, 

remontera, an iiord, ]iar la pas^se dite le IVirtland Channel, jnsqn'a oe qn'elle touche 
a la cote de la terre fernie sitnee an 56° degre de latitnde nord.« 

It is to oo north until it reaches the coast of the continent. 

Portland Channel appeared on the maps the negotiators had, to 
be much narro^ver, as it is in fact, than either Taku Inlet or Lynn 
Canal. 

Mr. Canning- denominated the border of the head of Portland 
Channel as •* la cote de la terre ferme situee au .56'-' deg-re de latitude 
nord." 

In the English counterpart he said: " Shall ascend northerly along* 
the channel called Poi'tland Channel till it strikes the coast of the 
continent lying in the o6th degree of north latitude.'' 

The border of the extreme interior part of Portland Channel was, 
in this Draft Convention, which he made after the negotiations had 
been pending for more than a year, and which had grown partly out 
of a cl im of Russia to own the entire northwest coast of America 
throughout its whole extent, expressly declared to be "coast of the 
continent,'' and yet this tribunal is asked to decide that, under the 
same treaty, the same word "coast" is not applicable to the borders 
of other nuich wider interior waters, and that, upon a mere tech- 
nical and judicial meaning attributed to the word "coast'' by 
nations for jurisdictional purposes, the sinuous coast contemplated 
l)y the treat}' was what is generally understood as a political coast 
line, drawn from headland to headland. 

Article two proceeds: 

De ce point elle snivra cette cote parallelement a .«es sinuosites, et sous 
ou dans la l:)ase vers la mer des montag■ne^^ qni la bordent, jusqn'au 139'' degre 
de longitude ouest dn dit meridien. 

It was to follow "along that coast" and "parallel to its windings."'* 
This did not mean that the line was to go straight away from 
" that point" southwardlj' along the coast of Portland Canal. Such 
a construction would be wholly unreasonable. It would be like 
marching up the hill and then down again. The line had pro- 
ceeded up Portland Canal to this coast on Portland Canal, and it 
would do violence to common sense to suppose that he intended 

«U. S. C. App., 183. 



88 ARGUMENT OF THE UNITED STATES. 

that, it ^;h()uld be rotrticcd on the land down tiiis coast to tlie 
exterior coast. The meaning- becomes absolutely clear, ^vhcn Ave 
take into view the mountain rang-e depicted on the map. which went 
straioht away to the northwest. The line was to follow^ this coast, 
and parallel to its sinuosities, and along- the seaward base of the 
mountains which bordered this coast, and the trend was toward the 
13i>th degree of long'itude. After having fixed unmistakably the 
meaning- of "' cote"" it is clear that he intended the line to proceed, so 
as to follow the sinuosities of the coast so defined, that is, the coast 
extending aroiuid the heads of all salt waters. This was the coast 
demonstrated by the mountains with reference to which the entire 
negotiations proceeded. 

In the third article he savs: 

Que la susdite lisiere de cute f^^ur le Continent de rAniericjiie fonnant la liniite 
des possessions Russes, ne doit, en aucun cas, s'etendre en laroeur depuis la mer 

vers I'interienr, au delil de la distance de lieues maritiines, a quelque dis^tance 

que seront les susdites monta<:nes.« 

Thus he defines the Jlsiere as ""a strip'" and not as ""strips'' of 
coast. The coast is '"'on the continent"' and not partly a fiction 
consisting of Avater. The "vvidth of the strip is not to be more 
than a certain distance "'depuis la mer." 

In determining what the coast was in respect to the water, he 
did not have in mind the Grand Ocean, but the word "sea"' was 
used to designate the water bounded ))y what he had already des- 
ignated as '"coast." In this sense Portland Channel was "mer." 
He had defined its upper border expressly as '"coast." For the 
same reason, other like waters constituted a part of the sea, and 
their borders constituted a part of the coast, and consequenth' the 
width of the "'lisiere de cote"" was to Ije measured from the coast 
at their heads, just as the line took its initial point on the lands 
on the coast at the head of Portland Channel. And from these 
coasts the lidere was to be measured "vers Tinterieur." 

As appears from the letter of Count Lieven to Count Nesselrode 
of July 13, 18ii4, Mr. Canning submitted his draft to Count Lieven. 
Count Lieven understood that the word "cote'' in this draft could 
not have been used in the unusual and special sense now contended 
for, because in this letter he says that Mr. Canning makes the line 

«U. S. C. App., 183. 



ARGUMENT OF THE UNITED STATES. 89 

run, " le long- do la haso dos inontag'iie.s qui suiveut les siuuosites 
du rivage."" 

He thus used the word "rivage"" as equivalent to the word '"cote," 
as used in this draft, and that fully accords with the understanding 
of the word "cote'' from the beginning- of the controversy down to 
that time. ""Rivage'' means the part of the earth which serves as 
a limit to any kind of body of water. It is applied indifl'ei'ently to 
the border of a sea, or a lake, or a river. The word '"rivage"' is 
translated "'coast" in the rendition of this letter by Great Britain.^ 

Mr. Canning, in his letter to Sir Charles Bagot of Jul}- 24, 1824, 
states that he has communicated this draft to Count Lieven with the 
request "that His Excellency would note any points in it upon which 
he conceived any difficulty likelv to arise or any explanation likely 
to be necessary." He further states that he has received the mem- 
orandum and that "there are but two points which had struck 
Count Lieven as susceptible of any question."'' 

It is hardly necessar}'- to say that the meaning of the word "cote" 
was not one of the two points which had struck Count Lieven as 
suscepti1)le of any question. 

It may well be imagined that, at that stage of the pi'oceedings, 
Mr. Canning would have been amazed, if Count Lieven had asked 
him to explain what he meant by the use of the word "cote," and 
whether or not, he meant to confine it to such a line of coast as that 
to which it is now sought to be confined in the British Case. 

INIr. Canning said in that letter: 

The protection given bj^ the convention to the American coasts of each power 
may (if it is thought necessary), be extended in terms to the coasts of the Rus- 
sian Asiatic territory. 

The measure of protection given ])y the convention to the Ameri- 
can coasts of Russia was certainly a snare and a delusion, if it 
involved their dismeml)erment and the destruction of the commerce 
with the natives, in the manner that is now urged. Instead of pro- 
tecting what was. as Avas from the first insisted, its undisputed 
coast, it would be transferring the sovereignty over parts of it to 
a nation that had never seriousl}" set up any claim to it. The pro- 
tection given to the American coasts of Russia would be quite 

«r. S. C. App., 185. 'U. S. C. App., 187. 

^-B. t!. App., 90. 



90 ARGUMENT OF THE UNITED STATES. 

different from that uiveii to the coasts of (jreat Britain. Great 
Britain iin({uestionably got the entire lower coast, but it is contended 
that Russia g'ot oidy patches of coast. The Russians did make 
pronounced objections on tliree points. Indeed, Sir Charles Bagot 
in a letter to Mr. Canning, August 12, lS2-i, pronounced their dif- 
ferences almost, if not altogether, irreconcilable. The second objec- 
tion was "as to the liberty to be granted to British sul)jects to 
navigate and trade fort^ver along the coast of the Usiere wliich it is 
proposed to cede to Russia, from the Portland Channel to the Goth 
degree of north latitude, and the islands adjacent."" 

He speaks of ""the coast of the lisiere." The llxtere is the 
dominating feature which was to ])e secured. It was to be such a 
Usiere as Russia had indicated would give protection, and the trade 
spoken of was along the coast of this Usiere^ which meant where 
it touched the water, and the word "•coast'' is used in the same 
sense in which he had previously used the word "rivage." 

In further explanation of Russia's objection he says: 

As to the second point: the Russian Plenipotentiaries declare that they are 
ready to grant to His Majesty's subjects for ten years, but for no longer period, 
the liberty to navigate and trade along the coast of the lisiere jjroposed to be 
ceded to Russia from the Portland Channel to the 60th degree of north latitude.'' 

Thus again he speaks of ''trade along the coast of the lisiere.'''' 
The Usiere was to extend from the Portland Channel to the 60th 
degree. This border or strip was the main security sought for, 
and the privilege to trade was to be given along the coast of this 
strip. 

Sir Charles informed Mr. Canning that it was the determination 
of Russia, rather to leave the controversy between the two govern- 
ments unsettled for an indefinite time, than to recede from their 
three oljjections specified, the second of which was the refusal to 
grant to British subjects the right "to navigate and trade forever 
along the coasts of the Usiere. "'■ 

Count Nesselrode, in his letter to Count Lieven of August 31, 
182-1, gives sut)stantially the same account of these differences. Of 

«U. S. C. App., 190. ^-U. S. C. App., 191. 

'^U. S. C. App., 190-191. 



ARGUMENT OF THE UNITED STATES. 91 

those cliiuses which he siws it w;is '"utterly impossible to accept'' 
he puts, as tirst, the foUowing: 

1. Liljerty to English subjects to hunt, to tish, and to trade with the natives 
of the country, perpetually, on the whole of that part of the coast which consti- 
tutes the subject of the discussion, and which extends from 59° of north latitude 
to 54° 40^^' 

He then speaks of Russia as having granted these very rights to 
the United States for ten j^ears, and of the impossibility of discrimi- 
nating in favor of Great Britain, bv granting them to her perpetu- 
ally. He shows plainly that by coasts he meant the whole extent 
of the coast where Russia's rights have been disputed. He sa3\s: 

We have been willing to suppose that, in spite of a formal taking possession, 
a long occupation of the principal points, and a peaceful exploitation of the 
sources of revenue and wealth presented by the countries in (juestion. Russia's 
rights of sovereignty to the fifty-tirst degree of north latitude might be the sub- 
ject of a doubt. We have, consequently, confined them to the 54° 40^, and, to 
prevent any new dispute from arising on this point, we have permitted one of 
the powers with which we were in litigation to share for ten years, on the 
whole extent of the coast where our rights had been disputed, the profits of 
hunting, fishing, and trading with the natives. We offer the same advantages 
to England, but to grant them forever would be to obtain the recognition of our 
rights of sovereignty only to abandon the exercise of them. It would l)e con- 
senting to possess hereafter only in name what we now possess in fact.'' 

He further savs: 

Russia's rights of sovereignty over the northwest coast, beginning at 59° of 
north latitude, have been disputed. Hence, between that degree and the parallel 
w^hich would form our southern boundary, we hastened to offer special advan- 
tages to the powers with which w^e were in dispute. AVe granted to the Ameri- 
cans for ten years the right to fish, to hunt, and to trade with the natives of 
the country, and we will make the same concession in favor of the subjects of 
His Britannic Majesty, but it must be well understood that this concession will 
only comprise the space inclosed between latitude 59° and the southern bound- 
ary of our territory, to wit: latitude 54° 40^, for to the north of the fifty-ninth 
degree His Imperial Majesty's rights of sovereignty have never been questioned, 
not only in no official document, but in none of the articles which the English 

and American newspapers have published on this subject, c- 

* * X- * * * -je- 

Our counterdraft carries our boundary from the fifty-first degree of north lati- 
tude to 54° 40'. It leaves to the establishments which the English companies 

« U. S. C. App., 201. cU. S. C. App., 202-208. 

'jUTs. 0. App., 202. 
4.574—0:3 7 



92 AKGUMENT OF THE UNITED STATES. 

may form hereafter on the northwest eoas^t all the territory situated to the f^outh 
of Portland Channel." 

Can it, with even a fshow of plausibility be contended that he 
understood the word '"''cote" in the treaty to mean less than the 
whole extent, less than what had been in dispute; that it left to the 
absolute sovereignty of Great Britain hundreds of miles of inland 
coasts and surrendered the right to lish. to hunt and to trade with 
the natives along- them !! And yet it is serioush" contended for Great 
Britain that he understood and used the word in this sense, and 
with this effect. The explanation in regard to the contre-projet 
of Russia says: 

England pers^if^t;^ in demanding from Ku.ssia the following ronce.sgions: 
1. The free navigation of the bays, gulfs, etc., and the light to Jixh, to hunt 
and to ti'iide directhj v/ith the vutires of tlie couiitri/ Jovecer, on all that part 
of the northwest coast constituting the disputed territory, from latitude 54° 30^ 
to 60°, subject to the restrictions mentioned in our convention of April 5 (17), 
with the United States concerning arms, gunpowder and sjjirituous liquors.'' 

This designates expressly ''all that part of the northwest coast 
constituting the disputed territory."" Great Britain certainly cannot 
say that the treaty ever contemplated giving her any territory that 
was not in dispute. Here it expresslv appears that Russia was to 
have all of the coast in dispute, and that Great Britain onl}" sought 
certain rights along it. 

THE FLXAL yj-JOoriATIOXS. 

Mr. G. Canning, in his letter to Mr. S. Canning of December 8, 
182-i, exi)lains the status of the negotiations, and gives instructions 
for concluding the treaty. In the most explicit terms he sets forth 
the demand that Great Britain shall secure the same rights as those 
secured to the United States by the treat}^ of 1S24. He says: 

Russia can )iot mean to give to the United States of America what she withholds 
from us; nor to withhold frtjm us anytliing that she has consented to give to the 
United States.' 

The uniformity of stipulations in pari materia gives clearness and force to both 
Arrangements, and will establish that footing of equality between the several contract- 
ing parties which it is most desirable should exist between three jiowers whose inter- 
ests come so nearly in contact with each other in a part of the globe in which no 
other power is concerned. <-' 



«U. S. C. App., 204. cU. S. C. Api.., 210. 

f>V. S. C. Ai)p., 205. 



ARGUMENT OF THE UNITED STATES. 93 

Count Negselrode himself has frankly admitted that it was natural that we should 
expect, and reasonable that we should receive, at the hands of Kussia, equal measure, 
in all respects, with the United States of America." 

The eoiitre-projet drawn up and .submitted l)v ^Ir. G. Canning" set 
forth in Article V. ahiiost the identical languao-e of Art, IV. of the 
treaty of 1824.'^ Now it is contended that he did not get for Great 
Britain wha^he said he was asking, viz., the same rights on the coast 
that the United States had secured, but that l)v tlie treaty of 1825, the 
rights of the United States were cut down, and that Great Britain, by 
the use of the word " coast '^ in the treaty, acquired excUisive sover- 
eignty over a part of the coasts, in respect of which the United States 
had been granted trading privileges for ten years. 

Article IV. of the treaty of 1824 appeared without any substantial 
variation as Article VII. in the treaty of 182.!). 

If the word "coast,'' as used in Art. III. of this draft, and in Arts. III. 
and IV. of the treaty as signed, meant a coast line drawn from head- 
land to headland, then it must be admitted that it meant the same 
thing in Art. I. of this draft, and in the same article of the treaty of 
1824 and that of 1825. It will not be asserted that one kind of 
a coast line was meant l)y the word in one article of a treat}", and 
that, without even a word of explanation in the negotiations, the same 
word had a far different meaning in other articles. What is the con- 
sequence of this contention, if '"coast" means what in this controversy 
it is claimed to mean? In that case, by Ai't. I. of the treaties of 1824 
and 1825, neither of the contracting parties acquired any right to 
resort to any coasts, not already unoccupied within the territoiy of 
the other, where such coasts were within a line drawn from headland 
to head, not more than ten miles apart. 

They had been treating about the whole extent of this northwest 
coast, a most sinuous coast, full of indentations and bordered by 
various islands so situated, as to make a territorial coast line drawn 
for jurisdictional purposes, embrace large areas of islands and waters. 
Such a line w^ould have excluded each contracting partv, for the 
purpose of trading with the natives, from resorting to any of the 
coasts so included, though not already occupied by the other. 

ffU. S. C. App., 211. I'V. S. C. App., 217. 



9-4 ARGUMENT OF THE UNITED STATES. 

THE MEANING OF '" COAST "" IN ART. YII. OF TREATY OF 1S25. 

Ill this connection attention is called to an argument, i)resented in 
the British Case based on Art. VII. of the treat\^ of 182.5. It 
proceeds as follows; 

A further argument in support of the British contention can l)e based upon Article 
VII of the treaty. The lil)erty to frequent the inland seas, gulfs, havens, and creeks 
on the coast mentioned in Article III is reserved mutually by both powers. This 
contemplates the possibility, at least, that some of these waters may be British. « 

The statement that "'this contemplates the possibility at least that 
some of these waters ma}^ be British," shows that it is meant to claim 
that Art. III. could not apply to any British waters south of 51:'^ -10', 
that it meant onty the coast and waters north of that latitude; and that 
as Art. VII. contemplates a use by Russia of some British w^aters, con- 
secpiently it must have been understood that such waters might exist 
under Art. III. north of 54^ 40'. The argument concludes by saying 
that the article "of course onl}- postulates that there should be some 
Russian waters to which it may appl3\ It ecpialh' postulates that there 
should be some British waters to which it may apply.'' 

This is absolutely without force, in its bearing on the Fifth Question. 
The meaning intended is that taking Articles III. and VII. together, 
there can possibly be no British waters to which Art, VII. can apph', 
unless they be found north of 51:'^ -10', and that this being true, it 
follows that, to give any meaning to the reciprocity provided for in 
that Article, the negotiators contemplated that, in drawing the inner 
line of the I/'sie/'e, some of the bays and inlets or parts of some of 
them, might go to Great Britain. 

Article III. is not by its terms confined to the coast north of 54^ 40'. 
The coast assigned to Russia is, but the Article deals with the whole 
northwest coast, and then particularly defines that part which is to go 
to Russia. It says: 

The line of demarcation between the possessions of the high contracting parties 
upon the coast of the continent and the islands of America to the northwest shall l:»e 
drawn in the manner following. 

South of the line was to belong to Great Britain. Here, then, are 
British waters and British coasts to which Art. VII. applies, without 
forcing such a remote conclusion as that it nuist have been intended 
to he framed so that it might apply to waters north of 54^ 40'. 

«B. C, 76. 



argump:nt of the united states. 95 

conclusion of the negotiations. 

The treat}' was concluded without any further exposition between 
the parties as to the points of ditierence. In his letter to Mr. G. 
Canning of Feliruary 17, 1S25, transmittino- the treaty. Mr. S. Can- 
ning shows clearly his understanding of the effect of the line which 
was to be di-awn parallel to the coast. He understood that the line 
was drawn, not on territorial waters, but on land. He says: 

The line of demarcation along the strip of land on the northwest coast of America 
assigned to Russia is laid down in the convention agreeably to your directions, 
notwitlistanding some difficulties raised on this iwint, as well as on that which 
regards the order of the articles, by the Russian plenipotentiaries. « 

He says "strip of land" and not ''strips of land and water.'" 
Mr. Middleton, on that very day, had an interview with Mr. 
Canning which he recorded in a letter to Mr. Adams. This contem- 
poraneous record of the views of Mr. Canning ought to have weight. 
In the first place it is not contradictory of, but entirely consistent 
with, all that had gone before. If Mr. Middleton had been capable 
of making a self-serving record for his country, no such motive could 
possibly have then existed. He says: 

I have the honor to acquaint you that a convention was signed yesterday between 
the Russian and British plenipotentiaries relative to navigation, fisheries, and com- 
merce in the Great (Jcean, and to territorial demarcation upon the Northwest Coast 
of America. In a conversation held this day with ]Mr. Stratfonl Canning I have 
learned that this treaty is modeled in a great degree upon that which was signed by 
me in the month of April last, and that its provisions are as follows, to wit: 

The freedom of navigation and tishery throughout the Great Ccean and upon all 
its coasts; the privilege of landing at all unoccupied ])oints; that of trading with the 
natives, and the special privileges of reciprocal trade and navigation secured for ten 
years upon the northwest coast of America, together with the mutual restrictions 
prohibiting the trading in tire-arms or spirituous liquors, are all stipulated in the 
British as in the American Treaty, and some new provisions are made for the privi- 
lege of refitting vessels in the respective ports, and no higher duties are to be 
imi^osed than upon National Vessels. '> 

He understood that l)y unoccupied "coasts'' was meant all the 
coasts-. 

Count Nesselrode. in writing to Count Lieven February 20. 1825, 
communicating the fact that the treat}' had been signed, said: 

The only point that has given rise to any difficulties in our discussions with the 
British plenij)otentiary related to the limits of the strip of coast which Russia is to 

«U. S. C. App., 22:1 &U. S. C. App., 224. 



96 ARGUMENT OF THE UNITED STATES. 

possess on the American continent from the lifty-sixth degi-ee of north hxtitnde to the 
point of intersection of the one hnndred and forty-first degree of west longitude. 

The Emperor would have found it more mutually just, more e<iually advantageous, 
if the natural frontier formed by the mountains bordering on the coast were adopted 
by both parties as the invariable line of demarcation. England would have gained 
thereby wherever those mountains were less than ten marine leagues from the sea; 
Russia wherever that distance was greater, and, in view of the want of accuracy of 
the geographical notions which we possess as to these countries, such an arrangement 
would have offered an entire equality of favorable chances to the two contracting 
parties. « 

Can it be imao-ined that when he was contending for an unvaiyino- 
mountain l)oundaiy for the "limits of the strip of coast which Russia 
is to possess," he understood that lie had receded so far as to take 
stretches of water as such boundary, had given up a continuous strip 
for broken strips, and had abandoned the sovereignty of Russia over 
hundreds of miles of coast, over which she had always asserted her 
claim; and that all of this occurred without any discussion or explana- 
tion, and without even the private correspondence of either govern- 
ment giving the remotest hint of it;' The idea is on its face incredible. 
To hold that such was the effect of the use of the word "coast" is to 
convict the plenipotentiaries of Great Britain of the most artful and 
veiled duplicit}^ imaginable, or those of Russia of a lack of intelli- 
gence that is incomprehensible. 

It would not be possil)le for any one to give a clearer and more 
forcible exposition of what Russia, Great Britain and the United 
States understood by the "nortliwest coast"' and "the coast," — as 
to which the jurisdiction of these respective powers was settled by 
the treaties of 1824 and 1825, — than that given by the distinguished 
counsel for Great Britain in the Fur Seal Arbitration. 

Sir Charles Russell discussed the question at great length. He said 
that the phrase northwest coast of America "extended to the whole 
of the coast line of the possessions claimed by Russia from Behring 
Strait down to its most southern boundary."* He quoted from the 
Ukase as follows: 

The pursuits of commerce, whaling and fishery, and of all other industry on all 
islands, ports and gulfs, including the whole of the northwest coast of America, 
beginning from Behrings Strait to the 51st degree of northern latitude; also from 

«U. S. C. App., 225-226. 

&Fur Seal Arbitration, Vol. 13, p. 128. 



AEGIJMENT OF THE UNITED STATES. 97 

the Aleutian Inlands to the eastern coast of Siberia, as well as along the Kurile 
Islands from Behrings Straits to the south cape of the Island of Urup, namely, to the 
45° 5(y northern latitude, is exclusively granted to Russian subjects. 

and thou added: 

Again, the Tribunal will see that the whole line of that coast is inchcated by the 
general description of Russian assertion of dominion. « 

In disciLssino- the treat}' of 1824 and the rights secured b}^ the United 
States under Article IV of that Treaty, he sa3's: 

There it is stated without any qualitication whatever; and this is written, as I say, 
six days after the Treaty; it extends without any qualification the whole way up; 
and the importance of Article four is that it gives a temporary advantage to the 
United States — that is to say, it gives to United States subjects rights of access to 
interior seas, to gulfs, to harbors, and to creeks, all of which, or the greater part 
of which, would l)e in strictly territorial waters; and, therefore, to which, upon the 
general rule of international law, the United States would not have any right of 
access at all. ^ 

Thus he shows that the United States and Russia, in treating- in 
regard to the northwest coast which had been claimed by Russia, 
meant b}" "coast" the shores of interior seas, gulfs, harVjors and creeks, 
"all of which or the greater part of whi(^h would be in strictly terri- 
torial waters."' 

It is the coast of these waters that Great Britain now seeks to 
exclude from the meaning of the word "cote"" in the treat}' of 1825, 
and on the ground that they embrace strictly territorial waters. 
This is urged as to a treaty in which, for the purpose of getting the 
same rights as the United States got in respect of such inland 
waters. Great Britain insisted upon inserting Article IV of the 
treaty of 1821, adopted almost word for word. This treaty of 1824, 
as above expounded by Lord Russell, gave to the United States for 
ten years rights in strictly territorial waters along the northwest 
coast, rights corresponding to which Great Britain demanded for 
herself, but which under the present contention she got as to some of 
those waters exclusively and forever as against both Russia and the 
United States. 

When Sir Charles Russell comes to speak of the right secured to Great 



« Fur Seal Arbitration, Vol. 13, 130. 
''Fur Seal Arbitration, Vol. 13, 142. 



98 ARGUMENT OF THE UNITED STATES. 

Britain under the treaty of ISi^o, he sets out Article VII, which is 
identical with Article IV of the treaty of 1824, and adds: 

Therefore under that Article there is for a limited period of time a right given 
(even as to waters whieh would be according to law territorial waters) of user of 
such waters, and that extends along tlie whole of the coast mentioned in Article III." 

This is the very coast now in dispute. 

Referring- to these two treaties, Sir Richard ^Yebster said: 

It is my contention that Great Britain intended to get, so far as coast rights were 
concerned, and so far as navigation and fishing rights were concerned, what the 
United States got. >> 

In speaking of Article IV. of the treaty of 1824, he says: 

It was something which would apply to what may be called interior seas and 
waters of the territory in future to be recognized as Russian as distinguished from 
the United States, c 

In discussing Article VII. of the treaty of 1825 in connection with 
Article IV. of the treaty of 1821, he said that the coast mentioned 
in Article III. of the treat}' of 1825 was "the whole of the coast up 
to Behring Straits.'"'^ 

He further said in the same connection: 

I sul)mit (remembering that the line of demarcation was to be comi)lete with refer- 
ence to the coast referred to as the northwest coast of the continent, and the Islands 
of America to the northwest), that nobody who can take an impartial view of this 
matter can come to any other conclusion than that the coast referred to in article 
VII is the whole coast; and when we remember that in the United States the expres- 
sion lisiere does not occur at all, and that Article III of the United States treaty speaks 
of the northwest coast of America north of 54° 40^, and that I am justified in saying 
that Mr. George Canning believed that he was getting the same for Great Britain as 
the United States had got from Russia — there is not any answer, at any rale, apparent 
(unless 1 have made some grave blunder) to the contention that the right of (jreat 
Britain to visit, during ten years, inland creeks, and harbours, and to visit for the 
purpose of navigation and fishing the seas Avhich washed the American coasts 
extended I'ight of way from 54° 40' up to the point t(j whicli I have called attention. « 

How could Mr. Canning have thought that he was getting the same 
rights that the United States got if the })resent contention of Great 
Britain is sounds If it be sound, then he builded wiser than he knew, 



«Fur Seal Arbitration, Vol. 13, 167. ''Fur Seal Arbitration, Vol. 1.3, 451. 

''Fur Seal Arbitration, Vol. 1.3, 440. ' Fur Seal Arbitration, Vol. 13, 451-452. 

<'Fur Seal Arl)itration, Vol. 13, 444. 



ARC4UMENT OF THE UNITED STATES. 99 

but to say that, is to say that the treaty means soinething-ditferent from 
what he thought it meant. 

The Treaty was made to express the understanding at that time of 
the parties, and no construction can l)e put upon it which starts out 
with a predicate that Mr. Canning did not understand it. 

Referring to the rights chiimed by Russia under the Ul^ase of 1821 
and to the monopoly granted to the Russian Company in the year 
1820 after the treaty, Sir Richard Webster said: 

In 1799, it was down to the 55°; and, in 1821, it was down to 51° in terms; and, in 
1829, it is the whole area assigned to Russia. It must have l)een, and was, the 
whole North West Coast of America above 54° 40^, which was the part exclusively 
assigned to Russia, as eompared to that l)elow, which was exclusively assigned to 
the United States. Observe that 54° 40' was to Ije the dividing line, etc." 

LA CRETE DES INIONTAGNES. 

THE COXTENTION OF THE UNITED STATES IS, THAT THE yEGOTIATOES BID NOT 
MEAN- THE MOUNTAINS NEXT THE SEA," NOM ANi' OF THE MOUNTAINS CONTENDED 
FOU BY GREAT BRITAIN, BUT MOUNTAINS OTHER THAN THOSE. CONSTITUTING A 
CHAIN SEPARATED FROM THE SEA BY INTER YENING MOUNTAINS. WHICH THEY 
INTENTIONALLY REJECTED; AND THAT THEY DID NOT CONTEMPLATE INDIYIDUAL 
MOUNTAINS WHOSE SU3IMITS WERE TO BE CONNECTED TOGETHER, OR E YEN SHORT 
RANGES HAYING A TREND ACROSS THE LINE OF COAST OF SUCH WATERS AS TAKU 
INLET AND LYNN CANAL, BUT A GENERALLY CONTINUOUS RANGE OF MOUNTAINS 
SUPPOSED TO BEGIN NEAR THE HEAD OF PORTLAND CANAL, AND TO CONTINUE 
WITH A GENERAL TREND PARALLEL WITH THE COAST, AROUND THE HEAD OF 
LYNN CANAL: AND THAT THE ASSUMPTION OF THE EXISTENCE OF SUCH A RANGE, 
AND THE AGREEMENT IN REFERENCE TO IT. WAS SUBORDINATE TO, AND IN 
HARMONY WITH. THE FUNDAMENTAL POSTULATE THAT "CoTE'' 3IEANT ALL OF 
WHAT COULD BE INCLUDED BY THAT TERM. AND NOT ANYTHING LESS. TO WIT: ALL 
OF THE NORTHWEST COAST DF AMERICA NORTH OF r,i,° 1,0' OYER WHICH RUSSIA HAD 
C LAIMEI) JURISDICTION. 

The discussion of the mountains contemplated by the treaty is nec- 
essarily involved in a consideration of the Fifth Question, and carries 
with it an answer to the Seventh Question. 

It is said in the British Case that, the description of the mountains 
in the Treaty, which are situated parallel to the coast. " indicates a 
general parallelism only. Mountains l)eing a natural feature could 
not, of course, be expected to run uniformly parallel to the coast, 
whether straight or winding."* 

<i Fur Seal Arbitration, Vol. 18, 463. ''B. C, p. 80. 



100 ARGUMENT OF THE UNITED STATES. 

This proposition is assented to, and it is agreed that the mountains 
which the negotiators contemplated, extended in a general direction 
parallel with the coast, and that the}' did not contemplate a crest of 
mountains, winding in and out, along the sinuosities of the coast. 
There is a diti'erence between the description of the mountains, and 
the description of the line in reference to the coast, in case the moun- 
tains fail. The}^ contracted with reference to a crest of mountains 
generally parallel to the coast, but if the mountains should fail, then 
the line was to be draAvn parallel to the sinuosities of the coast. 

The l^ritish Case gives a ver}^ deft, but palpabl}- unfair turn to this. 
Referring to the mountains it sa^'s: 

In this they differ from the arbitrary 10-league line which, especially as it would 
only fall to be drawn through a country where mountains failed, might he drawn 
with substantial accuracy pamllel to the general line of the coast.''' 

It is a forced construction to say that the treaty onl}' contemplated 
that the line should be drawn on the ten- league basis '"'■ through a 
country where mountains fail." The Treaty provided that, if the 
crest of the mountains, with reference to which they contracted, and 
which extended apparently in a direction parallel to the coast, should, 
at an}^ place, be at a greater distance than ten marine leagues from 
the ocean, the line should l>e drawn parallel to the sinuosities of 
the coast. There was no provision that this line should not be 
drawn through a mountainous country. There is ever}" reason to 
believe that the negotiators knew that the whole country was moun- 
tainous, and that, if the crest of the mountains which the}- had in view 
should be further from the coast than ten marine leagues, the line 
would nevertheless be drawn through a country where mountains 
did not fail. It was not to be drawn "parallel to the general line 
of the coast," but faraUeJ to the sumos/ties of the coast. 

The British Case proceeds to say that: 

* * * the mountains in question might vary in distance from the coast, 
from its very edge to the extreme limit of the 10 marine leagues, without sacrificing 
their general parallel character. « 

It might have been added that it was contemplated that the moun- 
tains in question might e.ccecd the extreme limit of ten marine leagues 
from the coast. 

«B. C, 80. 



ARGUMENT OF THE UNITED STATES. 101 

There is nothino- in this, however, to justify any assumption that 
the individuality of the crest of mountains they had in view is to be 
ignored, or that any mountains, however haphazard they might be, 
answer to what the negotiatoi's contemphited, provided only they are 
within ten marine leagues from the coast. It is further observed upon 
the same page that the mountains were not to be unljroken. and that 
this is made clear from the circumstance that the line was to be 
crossed by rivers. The fact that the treaty contemplated that the 
mountains were to be crossed by rivers, and expressly provided for 
their navigation across the boundar\^ to the ocean, does not justify 
the conclusion that such a particularized character of breaks in the 
mountains includes breaks six and ten miles wide, not made by 
rivei's, but by inlets and bays which were not specified. Under the 
general rule of construction that the specilication of one is the exclu- 
sion of others, such an argument is wholly inadmissible. 

In the British Case it is said that: 

According to the British contention, the phrase " la crete des montagnes" signifies 
the tops of the mountains adjacent to the sea. It was introduced as a concession 
from the line along the base of this slope proposed by 3Ir. Canning." 

Again it says: 

The mountains were to lie the mountains next the sea." 

No authoritv in support of this claim is to be found in the 
negotiations. 

THE MAPS ACCESSIBLE TO THE NEGOTIATORS SHOWED A WELL DEFINED MOUXTAIX 
CHAIX TO THE INTERIOR OF THE MOUyTAIXS XEXT TO THE SEA, AXD CORRE- 
SPOXDIXG TO THE LAXGVAGE OF THE TREATY. 

It is known that the negotiators had Faden's map of 1823, the map 
of 1802 published ])y the Russian Quarter-Master Generars Depart- 
ment, probaljly Vancouver's charts (a Russian, English or French 
edition), one or more maps by Arrowsmitli. and possibly the Langs- 
dorf map of 1803-1805.* 

It is asserted in the British Case, but is not proven and therefore is 
not admitted in the Case of the United States, that Vancouver's Nar- 
rative was read by the negotiators.'' 

«B. C, 81. eV. 8. C. C, 8. 

«'U. S. C. C, 7-8. 



102 AKGT'MENT OF THE UNITED STATES. 

Fadcn\s map" shows a well deHiied, continuous crest of mountains 
which, from the south passes a short distance to the northeast of the 
liead of Portland Canal, and continues general!}' parallel with the 
coast, turning around the head of Lynn Canal and nearly uniting- 
with another range of which Mount Fairweather and Mount St. Elias 
are parts. Between this range of mountains and the coast of the baj's 
and inlets all along, other mountains are shown much nearer the coast, 
and in some places almost reaching it, but they do not form any 
range whatever trending generall}' parallel with the coast, but are 
depicted either as short mountain formations trending toward the 
coast, or as spurs. 

If the negotiators saw this map they were impressed with the idea 
that, there was a generalh" continuous, and homogeneous range of 
mountains, forming one system, extending from near the head of 
Portland Canal all the wa}' up to Mount St. Elias. They were also 
impressed with the fact that between this range and the coast, there 
Avere other mountains, very nuich nearer the coast, which constituted 
no part of the crest of this range of mountains, and which, if they 
belonged to the system at all, were foothills, or olfshoots of it, Avith a 
general formation nearly at right -angles 1o the trend of the crest. 

If they examined the Russian map of 1802^ they would have been 
impressed in the same way as b}' Faden's map, with the difference 
that the slopes of the mountains, the crest of which extends from 
Portland Canal around Lynn Canal, parallel with the general trend of 
the coast of the interior waters, allowing exceptions for some short 
arms which make out almost at right angles from such coast, reach 
down to the ver}^ shore itself, and do not present separate or short 
mountains, either independent of, or running at right angles to the 
range, as shown on Faden's map. 

If they consulted Arrowsmith's map of 181S'' thev got an impression 
of a crest of a homogenous range, just like that given in the other two 
maps, and, at places, would have been impressed with the fact that, 
there were lateral, or independent •mountains, between this general 
range and some portions of the coast. 

If thev consulted Arrowsmith's map of 1822,'' they were not im- 

" British Atlas, No. 10. ^U. S. Atlas, No. 8. 

f>\]. S. Atlas, No. t). <' U. S. Atlas, No. 10. 



ARGUMENT OF THE UNITED STATES. 103 

pressed with the idea that there were any mountains at all between 
the head of Portland Canal, and the head of Lynn Canal. 

Arrowsniith's map of the same year as reproduced in the British 
Atlas (No. 8) shows a verj' faint indication of mountains. The same 
map uncolored" is a little more pronounced, but shows nothing like 
a continuous crest of mountains. There appear to be mountains 
extending in a general direction, just as in the other map, but they 
are ver}' much broken up. 

Langsdorf's map^ is so vague, and inaccurate, that it cannot be 
supposed that it was relied on for an}" purpose, when other maps, so 
much superior, were at hand. 

Yancouver\s maps show a continuous mountain range, or chain, 
from northeast of the head of Portland Canal all the w^ay around the 
head of Ljnm Canal, Between this dominant range, or chain, which 
is much higher than any of the other mountains depicted, and the 
coast, the whole country is shown to l)e mountainous down to the 
ver\' water, and all along the coast. This is much more pronounced 
in the map showing the territory from Portland Canal to Prince Fred- 
erick Sound, than on the map showing the territory from Prince 
Frederick Sound north. ^ 

In Map No. 1 of the British Atlas the general range is shown and 
along a large part of the coast north of Portland Canal mountain 
formations are shown extending down to the very water, which 
appear to be independent of the general range. 

In Map No. 2 of the British Atlas, the mountainous character of 
the country to the seaw^ard of this general range, and north of Port- 
land Canal, is shown with very great distinctness. All the way up to 
57^ 30' north latitude the mountains extend down to the water. 

In Map No. 3 of the British Atlas, which is a duplication of Map 
No. 2, from 56'^ to 57" 30', not showing, however the coast between 
56" and about 57"^ 10', the mountains between the general range and 
the coast, are not so numerous, but they distinctly appear. 

On part of Vancouver's No. 7, which appears as Map 4 of the 
British Atlas, there is a marked distinction between the dominant 
chain and the mountains near the water's edge, and those at the 

^'British Atlas, No. 9. 'J British Atlas, No. 7. ^' U. S. Atlas, Nos. 4 and 5. 



104 ARGUMENT OF THE UNITED STATES. 

water's edge are more pronounced thnn the sea of mountains inter- 
vening between them, and the crest of the dominant chain. 

It would have been impossible for these maps to be examined with- 
out getting three distinct impressions: 

1. That there was a general, continuous, dominant range of 
mountains, individualized and distinct from all other mountains 
shown. 

2. That this rango of njountains, except near the heads of some of 
the inlets, was approximately ten marine leagues from, and parallel 
to the gene]"al trend of the sea waters in that vicinity. 

3. That this trend followed the general line of the coast of the 
continent as far as the head of Lynn Canal, that it turned, still fol- 
lowing the coast of Lynn Canal, and thence proceeded northwardly 
following the general line of the continental coast. 

This was the picture they had before them. The coast which they 
were proposing to divide along the parallel of 54^ 40' was all of the 
northwest coast of America, and Russia was to have all the coast 
north of 54° JO'. 

If the negotiators read Vancouver's Narrative, which is not admitted 
b}' the United States, the narrative not being put in as evidence or 
relied on by the United States, the impressions made by the maps as 
to the mountainous character of the country from the very water's 
edge would have ])een confirmed. (See appendix to this argument, 
Title "Extracts from Vancouver's Narrative.") 

What the maps sufficiently showed as to the mountainous character 
of the country, along the coast and in the interior, between Portland 
Channel and Stikine River, and Stikine River and Taku Inlet, and 
between Taku Inlet and Lynn Canal, without the narrative of Van- 
couver, is confirmed by subsequent explorations, and it may confi- 
dentl}^ be affirmed that the negotiators, desiring to give certainty to 
the boundary line, spoke according to what the maps showed, when 
they designated a line to be drawn from the point where it would 
strike the 56th degree, along the crest of the mountains situated par- 
allel to the coast, and that where the crest of these mountains, which 
extend in a direction parallel to the coast, from the oOth degree of 
latitude to an intersection with the 141st degree of longitude, should 
be at a distance of more than ten marine leagues from the ocean, thev 
should no loneer serve as a boundarv. 



ARGUMENT OF THE UNITED STATES. 1U5 

They saw that there were mountains .shown along- the coast, and 
that there were other mountains between those rising- up from the 
water line, and the mountains depicted as a continuous chain fi'om 
the northeast of the head of Portland Canal around the head of Lvnn 
Canal. 

It also appeared that along- these seaward mountains there was not 
any crest of mountains parallel to the coast from Portland Canal to 
the 141 - of longitude. They described a particular crest of moun- 
tains that was in their mind's eye, for they said: 

"Que partout ou la crete des montagnes qui s'etendent dans une 
direction parallele a la Cote,"' etc. 

It was on the divergence of these particular mountains more than 
ten marine leagues from the ocean, that the line was to be tixed I)y 
distance. The neg-otiators contemplated that these mountains might 
be more than ten marine leagues from the coast, a hypothesis which 
could not have been possible in respect of the irregular mountains 
shown to l)e along almost the entire coast, down to the ver}" water's 
edge. In further demonstration of what mountains they meant, the 
reason for referring- the boundary line to the mountains must be con- 
sidered. It had previously been understood that wherever the dividing- 
line of the coast to be agreed on, should strike the coast, all of the coast 
to the north of that line was to belong- to Russia, and it was understood 
by the neg-otiators that this was to be a strip on the continent for the pro- 
tection of Russian establishments from encroachments by the subjects 
of Great Britain from the interior. The mountains, therefore, were 
not a primary, l)ut a secondary consideration. The}'^ werea subsidiarj- 
and not a dominant feature of the Treaty. Thev were to strengthen 
and not to weaken. They were introduced to more certainly define 
the lUlere and not as a factor to disintegrate and destroy it. The moun- 
tains were not invoked b}' the Russians to be a Frankenstein, to destroy 
that which had been already conceded, and which they were called on 
to protect. 



106 ARGUMENT OF THE UNITED STATES. 

THE (IIARACrER AXD IDEXTITV OE THE MOJ'XTAiyS AS SIIOW'X BY THE XEOOTIA- 

TIOXS AXD THE TE'EA TV. 

Let us see how the question as to mountains arose, progressed and 
cuhninated. Mr. Caiuiing, in his instructions to Sir C. Bagot of 
Jany. 15, 1824, said: 

If your excellency can obtain the strait which separates the islands from the main- 
land as the boundary, the prolongation of the line drawn througli that strait would 
strike the mainland near Mount Elias — the lowest point of unquestioned Russian 
discovery. But if that were too much to insist upon, the one hundred and thirty- 
fifth degree of longitude, as suggested by your excellenc}^ northward from the head 
of Lynns Harbor, might suffice. 

It would, however, in that case be expedient to assign, with respect to the mainland 
southward of that point, a limit, say, of 50 or 100 miles from the coast, beyond which 
the Russian posts should not be extended to the eastward. We must not on any 
account admit the Russian territory to extend at any point to the Rocky ^Mountains.'"' 

Thus lie expected Russia to have a substantial strip of land on the 
continent. In this he followed the suggestion of the Hudson's Bay 
Company. * 

The earlier propositions of Sir Charles Bagot made no reference 
whatever to mountains. Their tirst introduction was in the Russian 
counterdraft as follows: 

To complete the line of demarcation and render it as distinct as possible, the 
plenipotentiaries of Russia have expressed the desire to make it follow Portland 
Channel up to the mountains which border the coast. 

From this point the boundary would ascend along those mountains, parallel to the 
sinuosities of the coast, as far as the one hundred and thirty-ninth degree of longi- 
tude (meridian of Lonclon), the line of which degree, prolonged northward, would 
form the lalterior limit between the Russian and English possessions, to the north as 
well as to the east. ^ 

This language is a clear demonstration as to the mountains had in 
view : 

1st. They were '' to complete the line of demarcation and render it 
as distinct as possible." 

2nd. The line was "to follow^ Portland Channel up to the mountains." 

3rd. It was to ascend along the mountains parallel to the sinuosities 
of the coast. 

"U. S. C. App., 14S. cV. S. C. App., 158. 

&U. S. C. App., 150. 



ARGUMENT OF THE UNITED STATES. 107 

This .showed the directioQ the line was expected to take, to attain 
the mountains referred to, and that it was to be prolonged in the same 
direction up to the mountains. To reach the mountains i^roposed by- 
Great Britain the line runs almost at right angles to this. The 
British proposal does not complete the line of demarcation and render 
it as distinct as possible. On the contrary, it constantly disrupts the 
line and is so uncertain that it depends for the identification of moun- 
tains fulfilling the terms of the treaty, upon the most labored, intri- 
cate and elusive demonstration. 

The onl}^ mountains on the map that in an}^ way fill these condi- 
tions, are those which are depicted as a continuous chain extending 
from the northeast "of the head of Portland Canal, parallel with the 
coast, around Taku Inlet and L3'nn Canal, to the 139th degree of 
longitude. The language exactly describes the picture shown b}' the 
maps, the word "sinuosities" being used to denote a general and not 
a minute conformation. It was a most attractive and natural lioundarv, 
and this is a persuasive argument in favor of the conclusion that it 
alone was meant. 

The reason given by the Russian plenipotentiaries for running the 
line along the mountains appears in the succeeding paragraph of the 
contre-projet as follows: 

The principal motive which constrains Eussia to insist upon sovereignty over the 
above-indicated hsiere (strip of territory) upon the mainland (terre ferme) from 
Portland Channel to the point of intersection of 60° latitude with 139° longitude is 
that, deprived of this territory, the Eussian-American Company would have no 
means of sustaining its establishments, which would therefore be without any sup- 
port (point d'appui) and could have no solidity." 

That Sir Charles Bagot understood exactl}^ w^hat the Russian nego- 
tiators had in mind in referring to the mountains is plain, for, in his 
amended proposal, he says: 

Since it has been decided to take as a basis of negotiation the mutual advantage of 
the two countries, it should be noted, in answer to the proposal made by the 
Eussian plenipotentiaries, that a line of demarcation drawn from the southern 
extremity of Prince of Wales Island to. the mouth of Portland Channel, thence up 
the middle of this channel until it touches the mainland (terre ferme), thence to 
the mountains bordering the coast, and thence along the mountains as far as the 
139° degree longitude, etc. & 

«U. S. C. App., 158. b\J. S. C. App., 159. 

1574— T)3— 8 



108 ARGLTMENT OF THE UNITE!) STATES. 

He nianifestl}" looked at the map and saw the mountains proposed 
by Russia which would be reached ))y a line that would follow 
Portland Channel up to the mountains which border the coast, "and 
thence would proceed as far as ISO"" longitude." He made no objec- 
tion to the particular mountains clearly indicated, but in his amended 
proposal ignored the suggestion of Kussia as to the mountains and 
proposed to run the line "parallel with the sinuosities of the coast, 
and always at a distance of ten marine leagues from the shore. "'^^ 
In their observations upon his amended proposal, the Russian pleni- 
potentiaries set forth distinctly their reasons for a mountain boundary 
as follows: 

The motive which caused tlie adoption of the principle of mutual expediency to 
be proposed, and the most important advantage of this principle, is to prevent the 
respective establishments on the northwest coast from injuring each other and 
entering into collision. 

The English establishments of the Hudson's Bay and Northwest companies have 
a tendency to advance westward along the 53° and 54° of north latitude. 

The Russian establishments of the American Company have a tendency to descend 
southward toward the fifty-fifth parallel and beyond, for it should be noted that, if 
the American Company has not yet made permanent establishments on the mathe- 
matical line of the fifty-fifth degree, it is nevertheless true that, by virtue of its priv- 
ilege of 1799, against which privilege no power has ever protested, it is exploiting 
the hunting and the fishing in these regions, and that it regularly occupies the 
islands and the neighboring coasts during the season which allows it to send its 
hunters and fishermen there. 

It was, then, to the mutual advantage of the two Empires to assign just limits to 
this advance on both sides, which, in time, could not fail to cause most unfortunate 
complications. 

It was also to their mutual advantage to fix these limits according to natural 
partitions, which always constitute the most distinct and certain frontiers. 

For these reasons the plenipotentiaries of Russia have proposed as limits upon the 
coast of the continent, to the south, Portland Channel, the head of which lies about 
(par) the fifty-sixth degree of north latitude, and to the east the chain of mountains 
which follows at a very short distance the sinuosities of the coast.* 

Thus they wanted a natural partition, and distinct and certain 
frontiers. For this reason the}' proposed Portland Channel, a body 
of water doubtless supposed to be sufficiently certain, whose head was 
known to end about the 56°, as the limit to the south (using the term 
in a general sense and not to give the direction with exactness), and 

«U. S. C. App., 159. h u. S. C. App., 161. 



ARGUMENT OF THE UNITED STATES. 109 

""to the east the chain of mountains which follows at a very short 
distance the sinuosities of the coast." 

Here, then, is a still more accurate designation of the mountains 
had in view. It had already been indicated that the line running up 
Portland Channel was to be carried on up to the mountains which 
were meant. Here is a further specification. It was a "chain of 
mountains which follows at a ver}^ short distance the sinuosities of the 
coast. " 

This chain was to be the boundar}- on the east. Could an^'one 
propose a general southern boundary with a fixed termination, and 
then describe from that point a general eastern boundary, fixed 
b}' a chain of mountains as a natural monument, and expect that 
in drawing the eastern boundary the line would run almost west to 
reach distant mountains instead of starting north along the nearest 
mountains for such eastern boundar}', and this, too, with nothing 
to show that such a remarkable method was to be pursued? 

How much less is such a hypothesis to be accepted when it is shown 
that, whether it actuall}^ existed or not. the mountains referred to had 
for the negotiators and to their minds a location on an eastern line, 
beginning approximately at the point which had been fixed as the ter- 
mination of the southern line. The inquiry is whether or not they 
covdd have meant the mountains now claimed by Gi'eat Britain as the 
line. It can be shown that they did not mean them, if it be shown 
that they meant other mountains situated in a different place and with 
characteristics essentially different, so far as their relation to the main, 
and accepted theory of the treaty, was concerned. If they contracted 
with reference to mountains, supposed to exist at a certain locality, 
and if they attributed to these ideal mountains characteristics which 
were essential, and controlling considerations in their selection, then 
if on inquiry the}' do not exist, other mountains totally different in 
these respects can not be substituted for them. If these other moun- 
tains are located far from the vicinity where the ideal mountains were 
supposed to exist, if they are not such mountains as were contem- 
plated, if they bring about a result in conffict with that sought to be 
attained, by an agreement made with reference to the ideal mountains, 
then upon what principle of reason or justice can it be claimed that 
they should be so substituted? 

If the line, to reach them must run, a great manv miles from where 



110 ARGUMENT OF THE UNITED STATES. 

it would have run, to reach the ideal mouutaiu.s, if, instead of being- a 
chain such as these ideal mountains were supposed to be, they are 
sporadic, disconnected peaks, or even formations of some extent, with 
some semblance of continuit}', if, instead of forming- a generally uni- 
form barrier, which was continued around, and generally parallel with 
all of the coast, the}', except for comparatively short stretches, are 
discontinued, and, instead of being parallel to, are perpendicular to 
large extents of the coast, then merely because they are mountains, 
and the other mountains do not exist, they cannot be substituted for 
them. 

The negotiations Avere broken off without anything further being- 
said as to the mountains. 

In a letter of April 11, 1824, to Mordvinof, Count Nesselrode makes 
plain what character of protection Russia demanded. He said: 

For thi.s only one expedient presents itself: to establish at some distance from the 
coast a frontier-line which shall not be infringed by our establishments and trappers, 
as also by the hunters of the Hudson's Bay Company. The Plenipotentiaries on 
both sides equally recognized the necessity of this measure; but the width of the 
coast-line necessary for the safe existence and consolidation of our Colonies, the 
direction of the frontier, and even its starting point on the Continent of America, 
still form subjects of negotiation, and the British Ambassador has declared that for 
continuing them he nmst seek new instructions from his Court. I shall not rej^eat 
that in these negotiations with England we took, and will continue to take, into 
equal consideration on the one side the requirements and interests of the establish- 
ments of the Kussian- American Company, and, on the other, the degree of its rights 
of possession in the interior of the Continent of America, and the n^easure of the 
methods for iirmly securing to the Company the possession of these territories. 

As I have said above, for tlie peaceful existence of our Colonies more than all is it 
necessar}- to determine with accuracy the frontier, the extent of the country between 
the coast, and this frontier nmst be sufficient and be in correspondence with the 
condition to what these establishments will, in all probability, in time attain, and 
be their means of own defence. « 

He sa^^s, it is necessar}^ to determine the frontier with accuracy, and 
that it must be a sufficient defence not only for present, but iov future 
establishments. 

We now advance the next step, as shown b}^ the record, toward a 
definite designation as to what the Russians had in view in their pro- 
posal as to the moiuitains, and how Mr. Canning understood it. 

«U. S. C. App., 167. 



ARGUMENT OF THE UNITED STATES. Ill 

On May 20, 182-1:, in a letter from Count Lieven to Count Nessel- 
rode, he said: 

Your excellency will notice by Mr. Canning's dispatch that the English Govern- 
ment agrees to accept the terms last proposed by our court, and that Sir Charles 
Bagot is about to I'eceive authority to sign, upon these bases, the convention which 
will permanently settle the state of our frontiers in America. The conditions placed 
at the discretion of the British ambassador on this point will ]irobably not appear to 
the imperial ministry of a nature to diminish the value of this concession. 

They consist: 

(a) Of a more definite description of the limits within which the portion of terri- 
tory obtained by Russia on the continent is to be inclosed. 

The proposition of our court was to make this frontier run along the mountains 
which follow the windings of the coast to Mount Elias. The English Government 
fully accepts this line as it is laid off on the maps; but, as it thinks that the maps 
are defective and that the mountains which are to serve as a frontier might, by leav- 
ing the coast beyond the line designated, inclose a considerable extent of territory, 
it wishes the line claimed by us to be descriljed with more e:^actness, so as not to 
cede, in reality, more than our court asks and more than England is disposed to 
grant. '^' 

The English government agreed to accept the terms last proposed 
by Russia. These terms were, in order to render the line as distinct 
as possible, to make it '"'' follow Portland Channel up to the mountains, 
which border the coast,'' and thence to '■'ascend along those mountains 
parallel to the sinuosities of the coast, as far as the one hundred and 
thirty-ninth degree of longitude."^ 

They had explained in their observations that they meant by moun- 
tains, "the chain of mountains Avliich follows at a ver}- short distance 
the sinuosities of the coast." Therefore the English Government 
understood it was a chain of mountains, and that it followed the 
windings of the coast. It has been shown that ])v coast they all 
understood the coast claimed by Russia, the whole extent of the 
northwest coast, north of 54P -iO'. It was a particular chain which 
was to tix the "line as it is laid off on the maps." The chain as laid 
down on the maps meets all of the conditions had in view. There is 
only one chain shown.'' 

This chain runs generally parallel to the sinuosities of the coast, as 
they understand that word. It formed a complete and continuous 
natural barrier, except where there might be passes or rivers. Can 

«U. S.-»C. App., 178. &U. S. C. App., 158. ^U. S. C. App., 161. 



112 ARGUMENT OF THE UNITED STATES. 

there be a doubt that these are the mountains, and that they were 
understood to run to the interior of the heads of all l)a3's and inlets? 
Can it he said that the neg"otiators meant any mountains in the 
region of the coast although they did not form a chain, mountains 
that ran perpendicular to anj- of the coast, mountains that did not 
form a substantially continuous barrier? 

They knew that there were mountain clili's depicted as rising right 
up from the coast, that there appeared a mountain elevation, and 
mountain peaks far to the seaward of this supposed chain. They 
knew that this chain did not purport to represent any such mountains. 
Then how can it be said that the}^ contracted with reference to 
such mountains, or that, if what they contracted with reference to 
does not exist, we must perforce go to what does exist, although it is 
plain that the}^ did not contract w^ith reference to it, and although it 
Avould luring about a result essentiall}'^ irreconcilable with what they 
had in mind, which in its essential feature that Russia should get 
all of the coast, was already understood and agreed to? 

The mountains were a mere incident. They were to serve as a con- 
venience to give security and detiniteness to what was fully agreed to. 
Misled by maps they thought that these mountains would serve their 
purpose. The}" never intended them to defeat it, and they never con- 
tracted in reference to anv mountains that could defeat it. The fact 
that the}" contracted with reference to these mountains, which ran 
around all of the coasts, is, whether such mountains existed or not, a 
f)roof of the contention that by coast they meant that coast running 
around all interior waters, and that the line was to be drawn parallel 
to the sinuosities of such coast. 

This is made clear by the objection made by Mr. Canning. He 
thought the maps defective, and that ^ the mountains which are to serve 
as a frontier might by leaving the coast be^^ond the line designated, 
inclose a considerable extent of territory," and more than was 
intended. The mountains were those shown on the maps running 
around all the coast, but they might leave "the coast beyond the 
line designated," that is on the maps, and so he wanted to guard 
against it. He then sought to make a change to the seaward base 
of the mountains. In his letter to Sir C. Bagot of July 12, 1S24, 
he said: 

After full consideration of the motives which are alleged by the Russian Govern- 
ment for adhering to their last propositions respecting the line of demarcation to 



ARGUMENT OF THE UNITED STATES. 113 

be drawn between British and ]\n.«sian occnpancy on the northwe.^t coast of 
America, and of the comparative inconvenience of a(hnitting some relaxation in the 
terms of your excellency's last instructions, or of having the question between the 
two governments unsettled for an indetinite time, His Majesty's Government have 
resolved to authorize your excellency to consent to include the south ]K)ints of 
Prince of Wales Island within the Russian frontiers, and to take as the line of 
demarcation, a line drawn from the southernmost point of Prince of Wales Island 
from south, to north through Portland Channel, till it strikes the mainland in 
latitude 56; thence following the sinuosities of the coast, along the base of the 
mountains nearest the sea to Mount Elias, and thence along the one hundred and 
thirty-ninth degree of longitude to the Polar Sea/' 

The line is still to follow "' the sinuosities of the coast"" from where, 
drawn through Portland Channel, it strikes the mainland in latitude 
56°, but "along the base of the mountains nearest the sea." He does 
not speak of a mountain chain, but of uiountains and the "base of the 
mountains uearest the sea." If this means the mountains nearest the 
sea and not the base nearest the sea, then these mountains were not 
the chain referred to by Russia. They could not be, for Vancouver 
showed in his maps and his narrative that there were mountains to the 
seaward of this chain. The mountains were not to run parallel to the 
coast. The line was to be drawn " following the sinuosities of the 
coast, along the base of the mountains." There is nothing to show 
that he ever intended to depart from the hitherto accepted meaning 
of the word coast. This line would, if he meant the mountains near- 
est the sea, have been drawn practically right at the coast, and all of 
the way around, and the lisiere would have been a mere fringe with 
no substantial footing. But he further says: 

In fixing the course of the eastern boundary of the strip of land to l)e occupied by 
Russia on the coast, the seaward base of the mountains is assumed as that limit, but 
we have experience that other mountains on the other side of the American conti- 
nent, -which have been assumed in former treaties as lines of boundary, are incor- 
rectly laid down in the maps, and this inaccuracy has given rise to very tronl>lesome 
discussions. It is, therefore, necessary that some other security should be taken that 
the line of demarcation to be drawn parallel with the coast, as far as ^Nlount St. 
Elias, is not carried too far inland. 

This is done by a proviso that that line should in no case (;. c, not in that of the 
mountains, which appear by the map almost to border the coast, turning out to be 
far removed from it), be carried further to the east than a specified number of leagues 
from the sea. The utmost extent which His Majesty's Government would be dis- 
posed to concede would be a distance of ten leagues, but it would be desirable if 
your excellency were enabled to obtain a still more narrow limitation.''' 

«U. S. C. App., 181. 



114 ARGUMENT OF THE UNITED STATES. 

This more speeitic instruction shows that he probabl}' had not meant 
in the tirst part of the letter to suggest different mountains from those 
before considered, but that he probably" meant the seaward base of the 
chain depicted, and not the base of those broken mountains nearest 
the sea. His reference to the map shows that he must have referred 
to this chain. He was not seeking to get nearer tlie coast or to obtain 
any part of the coast, but to guard against going too far into the inte- 
rior. He feared that ''the line of demarcation to l)e drawn parallel 
with the coast'' if drawn on those mountains, which, as shown on the 
maps, satisfied the condition as to. parallelism to the coast, might on 
account of the mistake in location, be further from the coast than they 
appeared. He wanted other security, and provided that ''the line 
should in no case (/. <=., not in that of the mountains, which appear by 
the map almost to border the coast, turning out to be far removed 
from it) be carried further to the east than a specified number of 
leagues from the sea." He referred to the chain of mountains which 
Russia meant and said that these mountains appeared almost to 
border the coast. He shows that he was willing to give, if necessary, 
a Usiere ten leagues wide. His draft convention shows the kind of 
mountains he meant. It says: 

* * * the line of frontier between the British and Rusi^ian possessions shall 
ascend northerly along the channel called Portland Channel, till it strikes the coast 
of the continent lying in the 56th degree of north latitude. From this point it 
shall be carried along that coast in a direction i^arallel to its windings, and at or 
within the seaward base of the mountains by which it is bounded, as far as the 139th 
degree of longitude west of the said meridian/' 

The line is to l)e drawn "till it strikes the coast of the continent 
lying ill the SOth degree.*" It "shall l)e carried along that coast par- 
allel to its windings, and at or within the seaward base of the moun- 
tains by which it is bounded." That is, the mountains which bound 
that coast. The line must first l)e parallel to the windings of the 
coast and at the ])ase of the boundary mountains, whether they are 
parallel to the coast or not. The mountains are not to control the 
parallelism. Nothing Init the coast is to control it. If mountains 
trend across the coast line, yet the line is to follow the windings of 
the coast and along the base of the mountains and is not to follow the 
mountains across the coast and interior waters. Doubtless he meant 
the mountains already referred to which, as shown bv the map, in 

"U. S. C. App., 183. 



ARGUMENT OF THE UNITED STATES. 115 

their general trend hounded all of the coast, including in coast, such 
coast as that at the head of Portland Channel, which he in that con- 
nection expressly designated as coast. 

If he meant the mountains nearest the sea, or those bounding the 
sea, he never sought in an}- way to press the idea, and clearl}" aban- 
doned it when it was rejected by Russia and he agreed to the lan- 
guage embodied in the treaty. 

It appears from a letter from Mr. Canning to Sir Charles Bagot 
of July 24:, 182-4, that he had communicated to Count Lieven a draft 
convention made by him, with a request that he would note an}' points 
in it upon which he conceived any difficulty likely to arise, or any 
explanation likely to be necessary. He enclosed to Sir Charles a 
memorandum made by Count Lieven, and said: 

Your excellency will observe that there are but two points which have struck 
Count Lieven as susceptible of any question. Tlie first, the assumption of the base 
of the mountains instead of the summit as the line of boundary; the second, tlie 
extension of the right of the navigation of the Pacific to the sea beyond Beliring's 
Straits. 

As to the first, no great inconvenience can arise from your excellency (if pressed 
for that alteration ) consenting to substitute the summit of the mountains instead of 
tlie seaward base, provided always that the stii^ulation as to the extreme distance 
from the coast to which the lisicre is in any case to run be adopted (which distance 
I have to repeat to your excellencj* should be made as short as possible), and pro- 
vided a stipulation be added that no forts shall be established or fortifications 
erected ))y either i^arty on the summit or in the passes of the mountains. « 

There is not the least intimation here that Mr. Canning was talk- 
ing about any different mountains from those proposed by Russia. 
If he had proposed different mountains Count Lieven would cer- 
tainh' have been struck by it, and he says expressly that only two 
points struck him. He shoAvs that he knew that Count Lieven 
understood his proposition as simply "the assumption of the base 
of the mountains instead of the summit as the line of boundary," 
and that he was not proposing any mountains different from those 
previously indicated hj Russia. 

Count Lieven certainly understood that he referred to the "chain 
of mountains" alread}' designated and not to some different moun- 
tains. In a letter to Count Nesselrode, July 13, 1823, he says: 

As regards the frontier of the respective possessions to the south of Mount Elias, 

Mr. Canning makes it run along the base of the mountains which follow the sinu- 

■ ■ ■»' • 

«U. S. C. App., 187-188. 



116 ARGUMENT OF THE UNITED STATES. 

osities of the coast. I thought it my duty to represent to him that when a chain 
of mountains is made to serve for the estal^Hshment of any boundary whatever, it 
is always the crest of those mountains that forms the line of demarcation, and that, 
in this case, the word "base," from the vague n)eaning attached to it, and the 
greater or less extension which may he given to it, did not appear to me adapted to 
protecting the delimitation in question from all controversy. " 

Thi.s is further shown by his iiiemoranduni on the North- West 
Coast Conveni.ion, as follows: 

The plan of the agreement drawn up by the English cabinet makes the boundary 
line of the Russian and English possessions on the northwest coast of America, south 
of Mount Elias, run along tJie baae of the mountains whidt follow the sinuosities of the 
coast. It is to be observed that, as a general rule, when a chain of mountains serves 
to fix any boundary line, it is always the sunamit of the mountains wiiich consti- 
tutes the line of demarcation. In the case now under consideration, the word base, 
because of its indefinite meaning and the greater or less expansion that can be given 
to it, seems hardly of a nature to fix the boundary line beyond all further question, 
for it is certainly not among the impossibilities, in view of the uncertain ideas yet 
prevalent in regard to the geography of these regions, that mountains chosen for 
boundary lines should extend, by an imperceptible declivity, to the very edge of 
the coast, b 

In this memorandum he says, that according to the plan of the 
English Cabinet the line is "to run along the base of the mountains 
which follow the sinuosities of the coast." If he had understood 
that this was a different set of mountains, he certainl}" would have 
commented on it. He proceeds in the next sentence to sa}' that, 

AVhen a chain of mountains serve to fix an}^ boundary line it is always the 
summits of the mountains which constitute the line of demarcation. 

He has in mind the same "chain of mountains'" which Russia had 
proposed, and the onh' question considered is Avhether or not the 
base shall be substituted for "la cime." He sa3's further, it is not 
among "the impossibilities" in view of the uncertain geographical 
knowledge, "that mountains chosen for boundary lines should extend, 
b}^ imperceptible declivitv, to the vei'v edge of the coast." This is 
seized on in the British Case, as a strong argument to show that, 
he understood that the coast mountains were meant. It proves just 
the contrar3\ If the mountains nearest the sea were understood, 
certainly their extending to the very edge of the water would not 
have been spoken of as something, "not among the impossibilities." 
Such language was entirel}" applicable to the chain of mountains 

«U. S. C. App., 186-187. b\j, s. C. App., 189. 



ARGUMENT OF THE UNITED STATES. 117 

ruiinino- from the hoad of Portland Caual northward, and to the 
hiterior of all the waters. The}' might well so descend near the heads 
of inlets, and might be expected there to approach by an imper- 
ceptilile declivity to the veiT edge of the coast. The mountains 
nearest to the sea would not be expected to do anything else. AVhat 
would be one of the possibilities in one case, would be the rule in 
the other case. 

In his letter of explanation to Mr. Canning of Aug. 12, IS'24:, Sir 
Charles Bagot, in discussing the negotiations, differences, propositions 
and counter-proposition, never made any allusion whatever to the 
mountains, although in the "Contre Draft of the Russian Plenipoten- 
tiaries," which he transmitted, all reference to the mountains had 
been eliminated, and they went back to his original proposition of 
a line following from its intersection with the 56° of latitude, ''cette 
cote parallelement a ses sinuosites." They were unwilling to risk 
the base of the mountains, and hence professed to abandon the 
mountains altogether, in order to secure a strip of uniform width, 
as England had proposed. '^ 

Count Nesselrode, in his letter to Count Lieven of Aug. 31, 1824, 
referring to his counterdraft, says: 

It al)olishes the establishment of the mountains as the boundary of the strip 
of mainland \vhich Russia would possess on the American Continent, and limits 
the width of this strip to ten marine leagues, in accordance with the wishes of 
England. ^> 

The third explanation with regard to the contre projet is as follows: 

In the first paragraph of this article, as in Ai'ticle II, we have suppressed all 
mention of the mountains which follow the sinuosities of the coast. It became 
useless from the moment that one (of the articles) fixed the width of the strip of 
mainland which would belong to Russia in marine leagues. <' 

This explanation is not entirely consistent with the previous 
contention of Russia, as to the desire for a natural mountain l^arrier, 
and manifestly they wanted then, to get away from the demand of 
Great Britain, for the line to run along the base of the mountains, 
fearing that it might come at points too near the coast. 

«U. S. C. App., 190-192. n'. S. C. App., 204. cjj, g. C. App., 206. 



118 ARGUMENT OF THE UNITED STATES. 

Mr. G. Canning', in his letter to Mr. S. Canning- of Dec. 8, 1824. 
called attention to this chang-e, as follows: 

The Kussian i)lenipotentiarie.s propose to withdraw entirely the limit of tlie lisiere 
on the coast, which they were themselves the first to propose, viz. : the summit of 
the mountains which run parallel to the coast, "and which appear, according to the 
map, to follow all its sinuosities, and to substitute generally that which we only 
suggested as a corrective of their first proposition. 

We cannot agree to this change. It is quite obvious that the boundary of moun- 
tains, where they exist, is the most natural and effectual boundary. The incon- 
venience against which we wished to guard was that which you know and can 
thoroughly explain to the Russian plenipotentiaries to have existed on the other 
side of the American continent, when mountains laid down in a map as in a certain 
given position, and assumed in faith of the accuracy of that map as a boundary 
between the possessions of England and the United States turned out to be quite 
differently situated, a discovery which has given rise to the most j^erplexing discus- 
sions. Should the maps be no more accurate as to the western than as to the eastern 
mountains, we might be assigning to Russia immense tracts of inland territorj', 
where we only intended to give, and they only intended to ask, a strip of seacoast. 

To avoid the chance of this inconvenience we proposed to (jualify the general 
projaosition "that the mountains should be the boundary, with the condition if those 
mountains should not be found to extend beyond ten leagues from the coast." The 
Russian plenipotentiaries now propose to take the distance invariably as the rule. 
But we can not consent to this change. The mountains, as I have said, are a more 
eligible boundary than any imaginary line of demarcation, and this being their own 
original proposition, the Russian Plenii^otentiaries cannot reasonably refuse to 
adhere to it. 

AVhere the mountains are the boundary, we are content to take the summit instead 
of the "seaward base" as the line of demarcation." 

Thus he brought Russia back to her original proposition, and 
acceded to it, and the reasoning on which it was based. He aban- 
doned the seaward base of the mountains bounding the strip of 
coast. He shows that he accepted the original chain, compre- 
hending the entire coast as shown on the maps, that lie intended 
to give "a strip of seacoast,'" and that he put the limit against 
recession from this coast, not that he ever contemplated getting 
any of the coast b}' adhering to the mountains, but because he 
feared that, without this limitation, he might be assigning- "immense 
tracts of inland territory." It is impossible to predicate any such 
fear, if he had contemplated such a mountain line as Great Britain 
now contends for, for those peaks were visible from the waters 
which had been navigated by Vancouver and had not been depicted 

«U. S.C.App., 210-212. 



AEGUMENT OF THE UNITED STATES. 119 

as a mountain chain. If the coast meant, was the one now contended 
for, then such a fear as that expressed by Mr. Canning- was a patent 
impossibility to him, and all the other negotiators. 

The contre-projet submitted in accordance with these instruc- 
tions by Mr. Stratford Canning provided that: 

* * * la dite ligne remontera au Xord (I'lsle Prince of Wales ajipartenant en 
entier a la Rnssie) , le long de la Passe, dite Portland Channel, jnsqn'a ce qu' elle 
tonche a la Cote de terre ferme au 56me degre de Latitude Nord, depuis ee point oi, 
ou la ligne de demarcation touche au 56nie degre, elle suivra le crete des Montagues 
dans une direction parallele a la Cote, jusqu'au 141me degre de Longitude Quest 
(Meme Meridien)." 

Thus he designates it as "la crete des Montagues dans une direc- 
tion parallele a la Cote." The treatj^ has it, "la crete des montagnes 
situees parallelement a la Cote."* 

Kussia, while not willing to take the seaward base of the moun- 
tains as the boundar}^ was willing to take the crest without any dis- 
tance limitation, and complained of the insistence of Great Britain. 
In his letter to Count Lieven of March 13, 182.5, Count Nesselrode 
said: 

Upon exchanging this instrument for that which is to be delivered to you by the 
Court of London, the Emperor wishes .you, Monsieur le Comte, to remark to Mr. 
Canning that it would have been more in conformity, in the opinion of his Iniperial 
Majesty, both with the principles of mutual justice and with those of reciprocal 
accommodations, to give as a frontier to the strip of coast which Russia is to possess 
from the fifty-sixth degree of north latitude to the jioint of intersection of the one 
hundred and forty-first degree of west longitude the crest of the mountains which 
follow the sinuosities of the coast. 

This stipulation, in fact, would have secured to the two powers a perfect equalit}^ 
of advantages and a natural l)oundary. England would have found her profit in it 
wherever the mountains are less than ten marine leagues from the sea, and Russia 
wherever the distance separating them from it is greater. It seems to us that, in 
the case of countries whose geography is still little known, no more equitable stipu- 
lation could be proposed. '' 

Count Lieven reported the reply as follows: 

Mr. Canning, while rendering full justice to the intentions which determined the 
concessions granted by our court, whose conduct on this occasion has borne indis- 
putably the stamp of the friendly feelings of His Majesty, the Emperor, toward 
England, attempted to justify the persistence of the British Government by assuring 
me that it arose solely from a sincere desire to prevent the recurrence of any dis- 
agreeable discussion in future, and not from any intention of acquiring an increase 

«U. S. C. App., 213. 6U. S. C. App., 3. ^-U. S. C. App., 227. 



120 ARGUMENT OF THE UNITED STATES. 

of territory or of limiting the extension of the Russian possessions; that the dispute-s 
in which the English Government finds itself engaged at this moment with the 
United States Government, on account of a stipulation of the treaty of Ghent similar 
to the one proposed by our court, and which likewise fixed a chain of mountains as 
the frontier between the possessions of the two States, had shown it all the inex- 
pediency of a delimitation established on this principle, the mountains having been 
found to deviate very considerably from the direction given them on the maps which 
were thought to be the most correct and the most detailed; that this inexpediency 
having presented itself in the case of countries whose geography is much better 
known than that of the regions to which the stipulations of the convention of 
February- 16 (28), last relate, the English Government, in now insisting upon the 
fixing of a less vague boundary, thought that it gave a proof of the value which it 
attaches to the prevention of even the possibility of a discussion as to the tenor of 
the transaction concluded between the two cabinets." 

Thus it appears that all the time they negotiated and contracted 
with reference to a chain of mountains, that the crest of this chain 
was to be followed, that the chain was one that was depicted on the 
maps as running around all the coasts, from the head of Portland 
Channel to Mount St. Elias, and that the mountains were not insisted 
on, with an^" intention of, acquiring an increase of territor}", or limit- 
ing the extension of the Russian possessions. 

If it appear that no such chain exists, or that, if it ma}" exist, it 
lies at no point within ten marine leagues of the coast, is that any 
reason for forcing the line to other mountains, which manifestl}^ were 
not meant, and which defeat the ver}- reasons which plainly con- 
trolled in selecting the chain which, in reference to the coast, 
appeared to be suitablj^ located^ The correspondence has been 
appealed to by both sides and the language of the treat}" has been 
scrutinized. It will he helpful to inquire what interpretation was 
put upon this particular feature of the treaty. 

THE EVIDEyCE OF THE MAPS ISSUED AFTER THE TREATY AS TO WHAT MOUyTAIXS 
WERE MEAXT BY THE TREATY. 

In 1826 Russia issued an Admiralty Chart showing the boundary 
line.* This line is laid down about ten marine leagues from the 
general trend of the interior coast. The map does not show an}' 
mountains where the line falls. It shows distinctly mountains right 
at the coast, following all of its sinuosities, and other mountains 
covering a large part of the territory, situated back of those next to 
the sea, with an absolutely clear space between the boundary line, 

« U. S. C. App., 230, 281. b u. S. Atlas, No. 11. 



ARGUMENT OP" THE UNITED STATES. 121 

and till mountains from the head of Porthmd Channel all the way 
round to Mt. St. Elias. 

This was an official map issued the year after the Treaty, when 
everything was fresh in the mind. The most striking- thing on it, 
looking to the long negotiations just terminated, was the boundary 
line. The next most striking thing is, that the line is drawn exactly 
where the chain of mountains depicted on Vancouver's and other maps, 
which were before the negotiators, was located. The n(>xt most strik- 
ing thing is that this chain of mountains is not shown at all on the 
map. The next most striking thing is that other mountains ate shown 
to the seaward of the boundary line, and that the line nowhere 
touches them, and cannot, on account of the clear intervening space, 
possibly be correlated with them. The declaration of the map, put 
into words, is "The mountains next to the sea were not the mountains 
meant t)v the Treaty, and the boundar}- line is not to be drawn along 
the crest or from summit to summit of these mountains or in any way 
with reference to them."' 

The map of Arrowsmith issued in 1833, speaks exactly the same 
message.'* The most conspicuous thing in this luap is a note as 
follows: 

"Note. — Wherever the summit of the Mountains (which are sup- 
posed to extend in direction parallel to the Coast) from the 56th 
degree of N. Lat. to the point of intersection of the 111st degree of 
W. Long, shall prove to be at the distance of more than 10 marine 
leagues from the Ocean the limit between the British Possessions and 
the line of coast which is to belong to Russia, shall be formed b}' a 
line parallel to the windings of the Coast and which shall never 
exceed 10 marine leagues therefrom. See Art. 1th, Treaty 1825." 

The line is put back of the "mountains next to the coast" because 
they were not "the mountains which are supposed to extend in direc- 
tion parallel to the coast from the 56th degree of N. Lat. to the point 
of intersection of the 111st degree of W. Long." 

The map of Brue of 1833 shows a chain of mountains, just as did 
the maps which the negotiators used. It also shows mountains to the 
seaward of this chain. The boundar}^ is made coincident with the 
chain and is entireW disassociated from these other mountains.''' 

« U. S. Atlas, No. 12. b \j, s. Atlas, No. 13. 



122 AEGUMEISTT OF THE UNITED STATES. 

Greenhow's map of 1844 shows the boundary drawn just as in the 
Russian Admiralty map and Arrowsmith's map, on a clear space. 
It also shows mountains to the seaward of the line, but not so 
continuous or so pronounced as the others. The line is drawn back 
of all of these mountains." 

The map of De Mofras of 1844^' shows the same as that of Brue. 

The Russian map of 1861'' is to the same effect as that of 1826. 

That of Berg-haus (1863)'' is to the same effect as the Russian map 
and that of Vancouver. 

The Russian map of 1814 revised to 1861 is the same." 

We have seen what Russia understood, and what disinterested 
cartographers understood. Look at the British Admiralty Map 
published in 1856 and corrected to 1865./ It shows a line marked 
''Boundar}^ between the British and Russian Territory" drawn without 
touching a mountain from the time it leaves the mountains at the 
head of Portland Channel until it reaches Mt. Fairweather. It also 
shows continuous mountains all the way around the coast, and down 
to the very water. Between these mountains and the boundar}' there 
is an intervening clear space of many miles in width all the way 
around. This map says unmistakably that "The mountains next 
to the sea are not the mountains meant by the Treaty. They have 
nothing to do with it, and the line must be drawn just as if they 
did not exist." 

The map of Arrowsmith, printed b}' order of the House of Com- 
mons in 1857,'^ shows the boundary line drawn in an absolutely clear 
space, about ten marine leagues from salt water, and it also shows 
mountains parallel to almost all the extent of the coast of the interior 
waters, and other mountains between them and the line, but it does 
not touch any of them until it reaches Mt. Fairweather, and moreover 
it is separated from them by an absolutely clear space of many miles 
in width. 

The United States understood all these messages of the maps, just 
as Mr, Middleton understood from Mr. Canning what the Treaty 
provided, and so when the tirst official map was made, under the 
direction of Mr. Sumner, it showed mountains next to the sea all 

a U. S. Atlas, No. 15. « U. S. Atlas, No. 22. 

6 U. S. Atlas, No. 16. f U. S. Atlas, No. 23. 

cU. S. Atlas, No. 20. f/ British Atlas, No. 21. 
(I U. S. Atlas, No. 21. 



ARGUMENT OF THP] UNITED STATES. 123 

the way round, but it also showed the boundaiT line far to the 
interior of all of these mountains." 

This was the interpretation of the United States as to what 
mountains were meant by the Treaty and, what is even more sig- 
nificant in the present argument, it is an affirmative and positive 
declaration that the mountains next to the sea were not those 
meant by the Treaty. 

To the same effect, varying only in immaterial details, is the 
official map of British Columbia of 188-i, and that of the Dominion 
of Canada corrected to 1882.^ 

Here are Russian, Canadian, English, American, and private luaps 
of well known cartographers, from the year after the Treaty to the 
year of the American purchase, and American and Canadian maps 
after the purchase, all of them showing the boundary line as it was 
understood under the terms of the Treat}^ all of them showing moun- 
tains next to the sea, and not one of them drawing the line along the 
summits of these mountains, but segregating them in such a pro- 
nounced and conspicuous way by laying it down with an interval of 
clear space of many miles that the line could not possibly be associated 
with them. 

From the time of the treat}^ of 1825 down to 1895, a period of 70 
years, no official map was ever issued, showing the boundary line 
drawn along the summits of the mountains next to the sea, and of the 
scores of maps issued during that period by cartographers not one has 
been produced that so depicts the line. 

If the uniform conduct of the parties most interested, during a 
period of seventy .years, and the general consensus of the educated 
world, publicly declared, could conclude a matter, then there would 
be no room for argument on the question. 

THE STIKINE KIVER. 

PHYAD AFFAIB. 

Nine years after the Treaty of 1825, what is known as the Dryad 
Affair occurred. The Dryad was a vessel of the Hudson's Bay Com- 
pany which in 1831: appeared off' St. Dionysius, a redoubt constructed 
by the Russians near the mouth of the Stikine River. The avowed 
purpose of the vessel was to establish a trading post up the Stikine on 

« U. S. Atla,«, No. 24. 6 British Atlas, Nos. 31, 32. 

4571—03 9 



124. ARGUMENT OF THP: UNITP:D STATES. 

Ent^li.sli tcrritorv. Mr. Ogclen, who was in charoe of the expedition 
said in a letter of pJune 20, 1884, to the Governor of the -Russian 
Territory: 

My instructions from the Governor of the Honorable Hudson's Bay Co., residing 
in Cohirdbia River, are to trade and form an estabUsliment ten marine leagues inland, 
in accordance with clause 2nd, art. 4 of Convention entereil into between Great 
Britain and Russia, &c." 

Tlie Hudson's Bay Comi)any had the privilege, under the Treaty, 
of trading- in all that country for ten years, and its representatives 
certainly knew then, as well as it is known now, that there were 
mountains along the Stikine Kiver nearer the sea than ten marine 
leagues. They understood, as everj'body else had understood, that 
the mountains referred to in the Treat3% w^ere not those mountains. 
They assumed that the}^ were ten leagues or more from the coast, and 
so proposed to make their establishment ten marine leagues from the 
coast. If they had Ijelieved that the mountains referred to in the 
Treaty, were those nearest the sea, then they never would have said 
that they were going to ''form an establishment ten marine leagues 
inland in accordance with clause 2nd art. 4 of Convention''. 

Mr. Ogden had, during the year 1883, gone up the Stikine River 
and had selected the spot where the post was to be established.'' 

The Russian representatives, acting from motives with wdiich we 
are not concerned, prevented the vessel from entering the river. On 
account of this action the British Government demanded of the Rus- 
sian Government indemnity on l)ehalf of the Hudson's Bay Compan3\ 
The occasion for this demand was a letter from Felly, Deputy Gov- 
ernor of the Hudson's Bay Compan}-, addressed to the representative 
of Great Britain, in which he stated that, the object of the expedition 
was, "to form a trading- establishment within the British Territories 
at a distance from the ocean exceeding ten marine leagues."'' 

Lord Durham, in a communication of Dec. 11, 1835, to Count Nessel- 
rode, making- claim for damages, refers to the letter of the Governor 
of the Hudson's Ba}' Company, and the complaint that the "Russian 
Authorities on the N. W. Coast of America have interfered with an 
expedition iitted out under the direction of that Co. for the purpose 
of forming a settlement ten leag-ues up the Stikine River." He.fur- 

" r. S. C. App., 269. '■ U. S. (;. A pp., 278. 

''U. 8. C. App., 272,283,313. 



ARGUMENT OF THE UNITED STATES. 125 

ther siiys that '" the nltiiiiate object of the expedition wa.s to forma 
settlement ir/fjun fh<^ Br!f!xJt T<'fj'!f(>i'ij."" 

Other articles of the Treaty were referred to in the correspondence, 
l)ut they are not material to the present discussion. It is made clear 
that, Russia and Great Britain both understood that, the purpose of 
the expedition was to go ten marine leagues up the Stikine, in order 
to get to British Territory. This shows that both governments under 
stood that, the mountains near the sea were not meant by the Treaty, 
for everybody with even the slightest knowledge about that country 
knew that the mountains nearest the sea were not ten marine leagues 
from the sea. Russia disavowed the acts of its representatives, but 
the ati'air hung on, until it was merged in the lease of the lisiere to 
the Hudson's Bay Company. 

Sl'RVFA'S OF THE STIk'IXE. 

The Stikine Ri\'er was surveyed by Russia in 1837 and the boundary 
was located on a map at a point where it was regarded that under the 
Treaty the line would run. and this point was about ten marine leagues 
from the coast, certainly far east of the summit of the mountains 
nearest to the sea.* This line was located after actual knowledge had 
been gained of the mountains within ten marine leagues of the sea, 
and in the light of this knowledge, taken in connection with the 
provisions of the Treaty, the mountains next to the sea were disre- 
garded. This was an explicit and deliberate interpretation put hj 
Russia upon the Treaty, so far as the summit of the mountains next 
to the sea, and the summits of mountains wHthin ten marine leagues 
from the ocean were concerned. 

The Russian Government in 1863, on account of a report that gold 
had been discovered on the Stikine al)out the boundar}' line, had the 
river surveyed. A report and map of this expedition was made b}" 
Professor Blake of Yale University, both of which were published b}' 
the United States in 1868. *" This map shows mountains on ])oth sides 
of the Stikine River from the very mouth of the river all the way up, 
above the bonndary line as claimed by the United States. 

In 1868 Professor Leach, formerly of the English Sappers and 
Miners, was employed by the Hudson's Bay Company, to survey 
thirty miles inland from the coast on a salt water line, that the Com- 

« U. S. C. App., 285, 286. '■ U. S. Atlas, No. 29. 

b U*S. C. App., 514, No. 28. 



126 ARGUMENT OF THE UNITED STATES. 

pany inight be aljle to ])uild their tradino- post in British Columl>ia. ^' 
This shows that the Hudson's Bay Company ignored the mountains 
to the seaward of the ten marine leagues. 

From 1872 to 1870 on account of the development of gold deposits 
in the Cassiar region the trade on the Stikine had. grown to such 
proportions as to impress both governments with the great impor- 
tance of esta])lishing the boundary line. As shown, there had l)een 
various surveys, all proceeding upon a plan which completely ignored 
the mountains next to the sea, as in any way controlling the location 
of the line. There had been no point tixed by convention. 

In 1874 a British Custom House was established on the Stikine River 
about where the boundary was supposed to be. 

On March 14, 1874, public notice was given by the Collector of 
Customs that duty would be collected "'at the boundary post or at 
Buck's Barr."" * This location wr-s not made with reference to the 
mountains next to the sea but with reference alone to the ten league 
limit. 

The Secretary of State, Mr. Fish, understood that this Custom House 
was intended to be located on the boundary line, for in a letter to Mr. 
Watson, the British Charge, dated May 18, 1874, he speaks of "the 
location of a British Customs officer at the l)oundary line between the 
two countries on that river.'' ^ 

The occasion of this was a remonstrance from citizens of the United 
States, on account of "the action of the Canadian officer of the Cus- 
toms stationed on the boundary line at Stikine River."'''' 

Mr. Watson, on Sept. 29, 1874, at the request of the Earl of Duf- 
ferin, forwarded to the Secretary of State, a copy of a minute of 
Council in regard to instructions given to the "Collector of Customs 
at the Boundar}' line on the Stikine River. "^ 

The fixing of this boundary line was an independent and deliberate 
act of Great Britain. No such line could have been selected on the 
theory now advanced as to the mountains next to the sea l)eing those 
meant by the Treaty. This was not a conventional line or a provi- 
sional line.-' 

In his letter of Oct. 16, 1876, to Hon. A. Mackenzie, Mr. Justice 
Gray spoke of this as a "conventional line" and "a conventional 

«U. 8. C. C. App., 73. ''V. 8. C. C. App., 64. 

6U. S. C. C. App., 61. « U. S. C. C. App., 65. 

c-U. S. C. C. App., 64. /B. C. App., 191, 192. 



ARGUMENT OF THE UNITED STATES. 127 

boundaiy". The Privj^ Council, havintj' this letter under considera- 
tion, said that there was no such conventional line/' 

Sir Edward Thornton followed the error from Justice Gray, in his 
letter to Mr! Fish of Jan'}' 15, 1877/ The mistake is clearly shown 
by Sir Edward Blake, and the Earl of Carnarvon, Sir Edward 
Blake said: 

No mention is made in the Memorandum of any agreement or understanding, for- 
mal or informal, as to a conventional boundary line pending the ascertainment of 
the true line. No such agreement or understanding has ever been made by this 
Government or bj^ any one with its knowledge or authority. 

There was not, and, indeed, under the circumstances which I have mentioned, 
there could not have been any intention to assert the existence, or to suggest the 
continuance of any such agreement or understanding. <" 

Mr. Fish, on September 13, 1875, called the attention of Great 
Britain to a report that a site for a town was about to be located by 
British subjects on the Stikine, within the territory of the United 
States, and on Oct, 2::^, 1875, the Earl of Carnarvon wrote to the Earl 
of Dutferin saying: 

I have the honor to transmit to Your Lordship a copy of a despatch from Her 
Majesty's Minister at Washington, reporting a conversation with Mr. Fish respect- 
ing the settlement of some British subjects at^a point near the Stikine Kiver, alleged 
by American officers to be within the United States territory and below the British 
Custom House, which is also stated to be within the United States boundary. 

In view of the circumstances represented by Mr. Fish it appears to Her Majesty's 
Government desirable that an officer should be sent by your Government or by the 
Provincial Government of British Columbia to ascertain whether the settlement 
alluded to and the British Custom House are within British Territory.'/ 

This letter of Sir E, Thornton said: 

The point was stated to be below the British Custom House on the Stikine, which 
Custom House was also supposed to be within the United States territory, that is, 
within the ten marine leagues from the coast at which the boundary should be in 
accordance with the provisions of the 4th Article of the Convention of February 
28th, 1825, between Great Britain and Russia. ^ 

On the 23rd day of November, 1875, the Committee of the Privy 
Council reported that: 

In the discussion of this subject between Sir Edward Thornton and INIr. Fish, the 
latter suggested that as the weight of the evidence seemed at present to be in favor 
of the point in question being in United States territory, the settlers should be called 

«B. C. App., 197. (flJ. S. C. C. App., 67. 

bB.JJ. App., 202. ^U. S. C. C. App., 68. 

cB. C. App., 222. 



128 ARGUMENT OF THE UNITED STATES. 

upon to suspend operations for the present and until the question of territory could 
be decided." 

The report further said: 

The Stikine River intersects the international boundary, in the vicinity of the 57th 
degree of north latitude, with so intricate a basis for deterniining the true line, it 
appears to the Committee that a satisfactory solution of the question can only be 
arrived at by accurately defining the point where the boundary intersects the Stikine 
River, and as settlements are likely to increase along theljanksof that river, it seems 
to be obviously in the interests of both countries that the true line should be defined 
at this point without further delay.'' 

The Privy Council recited tlie boundary provisions of the Treatv in 
the report, and then stated that "The Stikine River intersects the 
international boundary in the vicinity of the 57th degree of north lati- 
tude." The sununits of the mountains nearest the sea are not in the 
vicinity of where the 57th degree crosses the river, and t-ould not have 
been regarded as the mountains meant by the Treaty, for if they had, 
then no such crossing- could have possibly been indicated. 

A British trader by the name of A. Choquette was, Sept. 19, 1876, 
notified b}- the United States authorities that he was within United 
States territory/' and this, tog-ether with the Peter Martin case, led to 
a survey by the C^anadian authorities for the purpose of determining 
the boundary line. 

The order against Choquette was suspended pending the survey. 

On Jan'y 15, 1(S77. Assistant Adjutant General Wood, in a letter to 
General Howard said: 

As a matter of fact, there is no well defined range of mountains extending in direc- 
tion parallel to the coast. 

A rugged, broken region extends back from salt water a considerable distance; the 
mountain peaks visible seeming to stand in groups or clusters; a confused mass of 
hills of varying altitudes "from three thousand to six thousand feet, the highest 
being, perhaps, in the vicinity of the \nnnt marked Grand Canon, in latitude about 
57° 20' N." 

It would appear that the Russian (iovernment had caused a monument to be set 
up on the Stickeen, marking a point ten marine leagues from the coast, and that 
this monument was, or is located some one hundred and thirty-five (135) miles from 
the mouth of the river, in the vicinity of a point i-alled Shakerville.'^ 

This letter enclosed one from C^aptain Jocelyn of Oct. 1, 1.S76, in 
which he said: 

Attention is respectfully invited to the map herewith enclosed, and to the provi- 
sions of the treaty between the United States and Russia proclaimed June 20, 1867. 

"U. S. C. C. App., 68. . cU. S. C. C. App., 70. 

''U. 8. C. C. App., 69. * f'U. 8. C. C. App., 79. 



ARGUMENT OF THP: UNITED STATES. 129 

A line ten leagues from the ocean, running parallel to the winding.y of the coast, 
wouM cross the Stickeen River nearly at the point indicated. I have personally 
examined the country near the river from its mouth to the head of steam navigation 
and was impressed with the difficulty that would arise in determining a continuous 
summit of the Coast mountains. There is no range or chain, but rather for the entire 
distance of over one hundred miles, ai^l to the right and left as far as the eye can 
reach, a confused mass of mountain peaks with elevations from three thousand to 
six thousand feet, the highest being perhaps in vicinity of the point marked "(Trand 
Canon" in latitude about 57° 20'. « 

So far as the record shows this comment was the hrst ever made 
ui)on the irregular character of the mountain formation, showing 
no chain or range, but ''a confused mass of mountain peaks." This 
description thus made is entirely sustained b}- the evidence hereinafter 
referred to. The character of the mountains accounts for the fact 
that, all efforts made up to that time to locate the boundary line, ignore 
those mountains, as not affecting the location. 

iirwTER snn-KV JXD peter mautix affair. 

The facts in the Peter ^Martin case have been fully set forth in the 
case of the United States. The effect of the Hunter survey is sought 
to be avoided in the British Case. Mr. Hunter was instructed by Mr. 
Dennis, the Surveyor General, to proceed to the Stikine River to 
make a survey of it and '" such a reconnaissance of the country embra- 
cing the coast range of mountains in the inuuediate vicinit}^ as will 
enable 3'ou to ascertain, with approximate accuracy, the boundar}^ on 
the said river between the Dominion and the territory of Alaska.''* 
He was furnished with an extract of the treatj^ describing the bound- 
ary, and other data. Mr. Dennis certainly did not mean by "the 
coast range of mountains" any such irregular peaks as are now con- 
tended for, or the summits of the mountains next to the sea, for he 
proceeds, in giving his specitic directions, after calling attention to a 
tracing made by Chief Justice Begbie, to say: 

You will make it your duty to verify this sketch as to the dotted red line shown, 
and generally take such observations as will enalile you to lay down, with approxi- 
mate accuracy, the crossing of the river (should the same occur within ten marine 
leagues of the coast ) by a line, in the words of the Treaty, " following the summit 
of the mountains parallel to the coast." '' 

He was directing his attention to the ascertainment of whether or 
not there were su<>h mountains as the treaty provided for within ten 

«IT>S. C. C. App., 80. ''B. C. App. 224. 



130 ARCiUMENT OB' THE UNITED STATES. 

Djarine leagues, but did not assume that these were the mountains 
nearest the sea from which a line could be drawn from summit to 
sunnnit. If he had made any such assumption, then these instructions 
would have been superfluous. 

On the same da}' Mr. Dennis gave him supplemental instructions 
to locate the exact spot where Peter Martin was taken ashore and 
where he committed an assault. 

Mr. Hunter made his report in June, 1877.^' 

Mr. Dennis, in the opening of his instructions, referred specifically 
to the Coast Range. Mr. Hunter shows that the Coast Range was to 
the east of Portla.nd Channel. After showing* the location of this 
range, he says: 

Another range is supposed to originate somewliere in the neighborhood of Port- 
land Channel, in latitude 55° N. and running apparently about parallel to the coast. 
Its axis crosses the Stikine River, 24f miles from its mouth; Mount Whipple, the 
highest peak on the River lies on this axis. It will be more particularly referred to 
hereafter. 

From latitude 58° 40' N., or 150 miles to the north of the Stickeen, the coast line 
for 200 miles farther northward has been accurately surveyed by the United States 
coast survey, and the position of the adjacent mountain range determined and laid 
down on the charts. 

The summit of tliis range is shown to run parallel to the coast, distant from it 13 
to 20 miles. 

The position and altitude of five of the highest peaks were accurately determined. ^ 

The mountains surveyed by the United States Coast Survey which 
he calls a range "parallel to the coast distant from it 13 to 2(> miles" 
are the mountains which are parallel to the coasts of the bays and 
inlets and the distance given is from such coasts. He says of these 
mountains: 

There is reason to l)elieve that the range from the southward, crossing the Sti- 
kine River, as above described, runs northward along the coast till merged in the 
St. Elias range. Its snowy summits can be seen stretching for many miles along 
the seal )oard to tlie north. It is undoubtedly the range of " mountains parallel to 
the coast" referred to in the Convention. <-' 

He furthei" sa3's: 

From the junction of the Iskoot with the Stikine, looking nearly due south, down 
the valley of tlie latter can be seen, distant 12 miles, a range of high snowy sum- 
mits stretching across the bearing of the river. These mountains appear rounded, 

«B. C. App., 225. '■B. C. App., 227—228. 

''B. C. App., 227. 



ARGUMENT OF THE UNITED STATES. 131 

massive and higher than any yet met with, and seem to form a Ijarrier across the 
valley, which here opens out into a wide basin, enclosed on the east and west side 
by high mountains and receiving the Kwahteetah, a considerable stream, from the 
eastward. 

This basin lies near the general axis of the range which has been before referred 
to as the mountains parallel to the coast. 

The line niarked on the river as the boundary between the Dominion and the ter- 
ritory of the Alaska crosses the lower end of the basin above described, and will 
be more |)articularly noticed below." 

Thus he tixe.s the o-eneral axis of the "range of mountains parallel 
to the coast referred to in the Convention'' at 24. Ti miles from the 
coast by the river and at 19.13 at right angles. The line now insisted 
on is 6 miles from Point Rothesay and is 18.71 miles below the line 
indicated by him as in the words of the Treaty " following the sum- 
mit of the mountains parallel to the coast. '' ^ 

He fixed the ten marine league line 53.99 miles up the river from the 
coast. He located the point where Martin committed the assault on 
the shore thirteen miles from the mouth of the Stikine and eight and 
a half miles within Alaska. 

The British Case says of the survey: 

Having regard to the proviso subject to which this arrangement was accepted V>y 
the United States' Government, Mr. Hunter's survey has no binding effect. The 
incident is, however, of importance in that it brought to the attention of the United 
States' Government the manner in which it was considered oil the side of Great 
Britain the Treaty ought to be applied. ^ 

It has a very different import. It did not indicate in the remotest 
way that Great Britain was then putting forward a contention that 
the coast meant in the Treaty was the general coast and not the coast 
of all of the interior waters. No such conception could be formed 
from anything suggested by Hunter's report. His report, if it is to 
be taken as indicative of the views of Great Britain, clearly shows 
that, with a full knowledge of the mountains along the Stikine, from 
the mouth up to the very mountains now taken for fixing the line 
across the Stikine in the British Case, these mountains were deliber- 
ately discarded as not l)eing those meant by the Treaty, and a range 
far to the interior was taken as the one parallel to the coast meant b}^ 
the Treat V. 

« B. C. App., 229. fB. C, 34. 

^ ftB.^. App., 230. 



132 ARGUMENT OF THE UNITED STATES. 

The Government of the United vStates had demanded the release of 
Martin. The communication stated that — 

( )ii the 12th of 8eptem]jer they made a lan(hiig at a ])oint on that river, only a few- 
miles from its mouth, within the territory of Ahxska, for the purpose of cookinur 
food.'^ 

and that thereafter the assault was confmitted. It was represented 
that lie should not be tried for the offense, it having been connuitted 
within the jurisdiction of the United States. The release was never 
demanded on the ground that he was conveyed through United States 
territory bv l)eing carried down the river. 

In a letter of Dec. 6, 1876, from Mr, Fish to Sir E. Thornton, he 
refers particularly to the "presence of the prisoner upon American 
soil".'' 

Again in his letter of January 10, 1877, Mr. Fish said to Sir E. 
Thornton that the testimony showed that "tlie assault occurred in 
what is considered to be Alaska territor}''.'" 

Lord Duff'erin, in a letter of Feb. 12, 1877, to the Earl of Carnarvon, 
referred to the correspondence of Mr. Fish. He also said: 

It is alleged in the prisoner's behalf that the spot at which the assault was made 
is not within Canadian territory, but is part of the soil of Alaska.'' 

As shown, Mr. Hunter was requested to fix and did tix the precise 
spot where the landing was made. The British authorities among- 
themselves discussed the right to transport Martin down that part of 
the Stikine within Alaska, and came to the conclusion that their right 
of navigation was limited to commercial purposes.^ 

Mr. Edward Blake, Minister of Justice, in his report of Fel)y. 5, 
1877, said: 

I do not understand ^tr. Fish to assert that the transport of ^Nlai'tin rin the Stikine 
River was a violation of the sovereignty of the United States. On the contrary, he 
seems to make no conij^laint of this, and imjjliedly, if not expressly, admits the \no- 
priety of this act. His position is, that the sovereignty of his country was violated 
by what took place on the shore of the river, in case the locality should turn out to 
be within-the limits of the United States. 

In this view, I think it the more prudent course, in re])lying to ]Mr. Fish, to deal 
only with the affair on the shore; assuming, without any special reference to the 
matter, the legality of the transport by the river..f' 



« B. C. App., 186. (I B. C. App., 208. 

^ B. C. App., 194. « B. C. App., 201. 

/B. C. App., 198. /B. C. App., 210. 



ARGUMENT OF THE UNITED STATES. 133 

The Earl of Carnavon. in a communication of Aug-ust 16, 1877, to 
the Earl of Dutierin, said: 

In roinmunicating with the United States anthorities, it t^hould ])e stated that 
Peter Martin is surrendereil on the ground that lie was a prisoner conveyed tlirough 
United States territory. " 

But the Minister of Justice of Canada, in a report of September 19, 
1877, said: 

I recommend, however, that, in communit'ating the result to Her Majesty's Min- 
ister at Washington for the information of the Government of the United States, it 
be stated that the ground of the action is that after enquiry it appears that Martin 
was a prisoner conveyed through United States territory, Avithout stating whether 
the territory referred to is the river or the shore, so that the very important general 
questions involved may be left as far as possible still at large. '' 

The commimication notifying" the Government of the United States 
simply said: 

With reference to the note which Sir Edward Thornton addressed to Mr Fish 
on the 11th of last January, I have the honor to inform you that I have just 
learned from tlie deputy governor of Canada that the Dominion Government has 
concluded the inquiry into the circumstances of the case, and has decided upon 
setting Peter Martin at liberty without further delay. '' 

So it stands that the demand for release was made on the ground 
that the ofl'ense for which he was tried was committed in Alaska. 
The exact spot was determined by survey, and the Government of 
the United States was notified simply of the release without any 
explanation or qualification. 

In the wa}' the issue was made and the incident was closed, there 
clearly was an interpretation; we may go further and say a solemn 
adjudication, by these two, governments that the spot where Martin 
committed the assault, which was far above the mountain summit line 
now proposed to be drawn, was within the jurisdiction of the United 
States. This makes the proposed line at the Stikine an impossible 
line, and those mountains selected out of the general congeries impos- 
sible boundary mountains. After this proceeding the line cannot be 
moved below that point, and the mountains selected below it must be 
discarded. 

The Hunter line was agreed to as a provisional ])Oundary by the 
United States. 

Sir Edward Thornton, in a letter to Mr. Evarts of January 19, 



« ^C. App., 2:31. c u. S. C. C. App., 87. 

''B. C. App., 2:«. 



13-t ARGUMENT OF THE UNITED STATES. 

1S78, enclosed a cop3' of Hunter's map, and asked whether or not the 
Government of the United States would accept it, until some exact 
line could ])e determined. This was agreed to as a temporary 
arrangement, provided that it be not construed as affecting in any 
manner the rights under the Treaty, whenever a joint survey should 
be made." 

The British Case is right in saying that the i)roviso leaves Mr. 
Hunter's survey without effect, so far as permanently fixing the 
boundary line; but the survey and the action on it are of effect as 
showing the interpretation put by the parties upon the treaty so far 
as rejecting the mountains nearest the sea are concerned, and as estab- 
lishing that the point where the assault was committed was. clearly 
within Alaska. 

SUCH MOUNTAINS AS THOSE CONTEMPLATED IN THE TREATY DO NOT 
EXIST WITHIN TEN MARINE LEAGUES OF THE OCEAN. 

Reference has just been made to the information given in regard 
to them in the letter of Asst. Adjutant General Wood of Januarj" 
15, 1877. 

Mr. Dall, in his letter to Dr. Dawson of April i^l, 1881, states 
that the chain of mountains shown on Vancouver's chart has no 
existence.'' The Marquis of Salisbury, in instructions to the British 
commissioners in 1898, said: 

From Portland Channel to Glacier Bay there is no such continuous range of 
mountains running ]>arallel to the coast as the terms of the Treaty of 1825 appear to 
contemplate. '' 

]Mr. Selwj^n, Director of the Geological and Natural History Sur- 
vey of Canada, says that — 

so far as has been observed, there is no single culminating or dominant range which 
■which can be traced for any considerable distance. '^ 

The testimony of eight of the United States civil engineers, who 
have repeatedly been in Alaska on surveying and exploring expedi- 
tions, shows that such a chain of mountains within ten marine leagues 
from the sea does not exist. They show that the peaks and hills on 
the shores of the inlets are in the nature of detached groups, and 
that as one goes into the interior there are higher mountains alwa3's 
to be seen in the interior beyond where actual explorations and sur- 

«B. C. App., 241-2. cB. C. App., 298. 

''B. C. App., 248. ^^U. S. C. C. App., 257. 



ARGUMENT OF THE UNITED STATES. 135 

veys have been made. The countiy. i,s a plateau of ice and snow 
from which rise numerous peaks. It is carved into many short 
ridges separated bv deep valleys, many of which are occupied ]}y 
glaciers. The whole region is full of mountains, and is a network 
of short, steep-sided ridges, generally lying at right angles to the 
nearest shore, and connected by short saddles. The general appear- 
ance is that of a heterogeneous jumble of irregular mountain masses. 
In general, the mountains rise abruptly from the sea, and the peaks 
increase in height as they recede from the coast. See depositions 
of O. H. Tittmann, H. G. Ogden, W. C. Hodgkins, A. L. Baldwin, 
J. A. Flemer, H. P. Ritter, J. F. Pratt, and P. A. Welker." 

The affidavits of these civil engineers are in entire accord with the 
topographical maps, and photographs of survey of the International 
Commission of 189'2, and they but elaborate and supplement those 
maps and photographs. They also describe the mountainous area 
for some distance inland beyond the limits delineated on the maps. 
They show that no such chain of mountains as that referred to in 
the treaty of 1825 as " la crete des montagnes situees parallelement 
a la cote" exists within ten marine leagues of the coast, between 
the o6th degree of north latitude and the 111st degree of longitude. 
And this is equall}^ true, however you define the word "cote", and 
whether it means the shores of the ba3^s and inlets, or whether it 
means the general trend of what may be termed the main shore, or 
whether it means the actual contact of the great body of the ocean 
washing the main portions of the continent. 

IT WAS NEVER THE INTENTION UNDER THE TREATY TO DRAW THE 
LINE ALONG THE SUMMITS OF DISCONNECTED PEAKS, AND IT IS 
IMPOSSIBLE, ON THE BRITISH THEORY, FOR ANY TRIBUNAL TO 
DETERMINE WHICH OF SUCH PEAKS SHALL BE CHOSEN. 

If a departure be made from the understanding of the negotiators, 
that the line was to lie run along the crest of a mountain chain 
which was supposed to run from about the head of Portland Chan- 
nel parallel with the coast, then there is absolutely no guide for 
selecting the line from mountain summit to mountain summit. If it 
be adjudicated that the line can l)e run along mountain summits 
within the ten marine league limit, then it must be affirmed of it 
that it will run from the point of the continent where proceeding- 

«U. S. C. App., 530-538; U. S. C. C. App., 262-264. 



13() ARGUMENT OF THE UNITED STATES. 

up Portland Channel it reaches the 56^, along- the crest of the 
mountains situated parallel to the coast, to the point of intersection 
of the 141 of longitude, and it must further be affirmed that this 
line will run along- the mountains which the negotiators contemplated. 

The negotiators showed that the l)ase of the mountains, along whose 
crest the line nnist run, might at places extend even to the sea. 
Under the British contention a line is to he run along summits of 
mountains which almost ever} where come down to the sea, and yet 
it must be maintained that these are the mountains that the nego- 
tiators had in view. 

The negotiators meant the crest of some particular mountains, 
and not the summits of mountains generally, that might ])e situated 
over that entire region, with liberty to select arbitraril}- here or 
there according to individual fancy. If the line is going to be run 
from summit to summit, then the side assuming the burden of 
selecting, must be able to sa^' which are the summits, with reference 
to which the contract was made. If there are many summits situ- 
ated over that territory, within the ten marine leagues, and the 
line can with just as much show of reason be run in a dozen or 
more ditferent ways by an arbitrary selection, then it is manifest 
that it cannot be said that an}' particular ones were those meant 
by the Treaty, for when the country presents such a formation as 
to permit so. many contlicting results, it is a demonstration that 
there is no such chain, or crest, or parallel mountains, as the 
negotiators meant, capable of identitication. 

The British Case, while designating particular mountains and 
ridges to be followed, manifests no special predilection for them, 
but admits that they are not necessarily those contemplated by 
the treaty, and that the field presents a further variety for choice 
It says: 

The particular mountains and ridges followed with the reasons for selecting theni 
are set forth in a declaration to be found in the Appendix by INIr. W. F. King, the 
British Commissioner upon tlie Survey under the Convention of 1892. It Mill, of 
course, be understood that this is not put forward as showing throughout the only 
possible way of giving effect to the British contentions, but that it is susceptilile of 
any variations in detail which may commend themselves to the Tribunal in exam- 
ining the topographical' conditions met with in tracing the line." 

The line as suggested by Great Britain skips from mountain top to 
mountain top, from highland to highland, across many inlets and 

«B. C, 83. 



ARGUMENT OF THE UNITED STATES. 137 

bays, and bears no resenibhuK-e whatever to the crest of mountains 
depicted on the maps that were before the negotiators. An examina- 
tion of the line projjosed, with a criticism of it. will be found in the 
Appendix to this aroument, p. 3. 

Where demonstration fails and the line is Jeft to ar1)itrary selection, 
the whole mountain provision is absolutely void for uncertainty. It 
is incapable of application, and no tribunal can assume to make a 
selection out of a variety oU'ered. The Treaty did not say anything 
in reference to the ocean, except that where the crest receded more 
than ten marine leag-ues from the ocean, the mountains should not 
control. It did not say crests, or summits, next to the sea, or two, or 
live, or eight, or any other number of leagues, from the sea. It w^as 
plainly manifest that the negotiators had in mind a crest about ten 
marine leagues from the sea that might in places go farther or come 
nearer. If there were distinct crests running parallel with the coast, 
one, say, two leagues, and one ten leagues from the sea, then 
undoubtedly it would have to be said that the negotiators meant the 
one ten marine leagues from the sea, for everything demonstrates 
that this was the distance they had in mind and that the lisiere was to 
be of a substantial character. 

If from what we know, it is taken to l)e shown that there is no 
crest of a chain of mountains within ten marine leagues from the 
sea, and if it be concluded that summits of mountains can be taken, 
then the question is, which summits are to be taken, those nearest the 
sea or those al)out midway or those nearest the ten marine league 
limit? Who is to choose!' If there were a well defined chain leading 
from about the head of Portland Channel parallel generall}^ with the 
coast to the 181st degree, surel}^ that would be said to be the crest, 
rather than one of mountains which evervwhere came down to the sea. 

If this would be so as to several crests, then why should not the 
same be the case as to several sets of peaks? If the Tribunal can 
roam all over that sea of mountains for a choice, then why should 
they select those most remote from the ten league limit rather than 
those nearest? If Mr. Hunter made one selection, and Justice Graj^ 
another, and Mr. Dawson another, and the present British Case 
still another, what rule is there for guidance? The al)surdity is still 
more manifest when it is borne in mind that in each case an appeal is 
made to the language of the Ti-eaty. There could not be a clearer 
proof that the Treaty meant no such mountains. It has not been 



138 ARGUMENT OF THE UNITED STATES. 

shown that a crest of a chain of mountains does not exist somewhere 
east of the head of Portland Cliannel and just beyond the ten- 
marine league limit, corresponding with the mountain crest of the 
Treaty. The country is unsurve^'ed and unknown. The record is 
practically blank on that .point. If there be such a crest, it is just as 
potential for fultilling the condition for drawing the line by measure- 
ment, as if the crest in some places came within ten marine leagues of 
the ocean. 

Can the Tribunal say that no such crest exists? If it had been 
shown that such a crest exists just beyond the ten marine leagues, 
would the suggestion be entertained for a moment that it should be 
ignored, and that the line should be drawn somewhere Avithin the ten 
marine leagues along the summits of such mountains as have been 
designated? If so, then it would first have to be determined that 
such crest was not contemplated b}" the Treaty, and that it must be 
excluded from consideration. It would have to be held that the Treaty 
did not mean a crest of a chain of mountains, but that a crest might he 
made in some way out of the array of summits in that region. Such 
a theory is not consistent with the negotiations and the Treaty. If 
it be not admissible, if it were shown that such a crest exists just 
bej'ond the ten marine league limit, then why should it be admissible 
when the record fails to show whether or not such crest exists? Non 
constat but it does exist. In either event, whether it be shown to 
exist, or not, in order to take the summits contended for, it must be 
held that the}^ were the mountains meant. 

The Treaty meant some mountains, and it must be that these shore 
mountains are the ones if they are to be taken. If this be shown, then 
it is immaterial whether a mountain chain outside of the limit exists or 
not. If the summits are what was meant, j;hen such a chain could not 
have been meant. The identitication of the summits does not depend 
on the absence of the chain. If they do not answer to the requirements 
of the Treaty, they cannot be taken wdiether the chain fails or not, for 
something that was not meant cannot be taken to supply the non- 
existence of what was meant. If they do answer the requirements of 
the Treaty, and it can Ije shown from all that transpired that thej' are 
the mountains parallel to the coast, whose crest was to be followed, 
then the fact that there is or is not a crest of a dominant chain of 



argume:n^t of the itnited states, 139 

mountains more than ten leagues from the ocean and paraUel to the 
coast is an immaterial inquir\\ 

But as has been said, this still leaves the dilemma of choice, and if 
the Treaty fails to demonstrate a selection and is so vague and uncer- 
tain, or rather if it descril)es what n)ay tit, on account of the formation 
of the country, a number of ditierent lines, then no court can 
arbitrarily select, and the provision fails for uncertaint}^, and the line 
must l)e determined by the distance provision. 



FROM THE TREATY OF 1825 TO THE TREATY OF 1867, THE UNDER- 
STANDING MANIFESTED BY GREAT BRITAIN, RUSSIA, AND THE CIVILIZED 
WORLD AT LARGP WAS THAT IT WAS " THE INTENTION AND MEANING 
OF SAID CONVENTION OF 1825, THAT THERE SHOULD REMAIN IN THE 
EXCLUSIVE POSSESSION OF RUS.SIA, A CONTINUOUS FRINGE OR STRIP 
OF COAST ON THE MAINLAND, NOT EXCEEDING TEN MARINE LEAGUES 
IN WIDTH, SEPARATING THE BRITISH POSSESSIONS FROM THE BAYS, 
PORTS, INLETS, HAVENS, AND WATERS ON THE OCEAN, AND EXTEND- 
ING FROM THE SAID POINT OX THE 56tH DEGREE OF LATITUDE 
NORTH TO A POINT WHERE SUCH LINE OF DEMARCATION SHOULD 
INTERSECT THE lllST DEGREE OF LONGITUDE WEST OF THE MERI- 
DIAN OF GREENWICH." 

.issi-:/rriox of 'lalv nv l-cssta by its official maps to all isterioi; waters 

AXI) THEIR COASTS. 

In 182i3 Russia issued an olticial map showing the boundary line 
drawn from Portland Channel to Mt. ^^aint Elias, about ten marine 
leagues from the coast of all the interior waters, and substantially 
where the crest of the mountains is depicted on the Faden map. 
This map had an inscription on the line reciting that is was the 
boimdarv established by the treaty of 1825. It is not contended 
that the map shows the actual location of the treaty line applied 
upon ascertained topography. It shows a clear claim to all waters 
and coasts in dispute. Their l)oundaries were well known and all of 
them were included in Russian territory". 

(' U. S. Atlas, No. 11. 
4571—03 10 



140 ARGUMENT oF Til?: UNITPJD STATES. 

liussia published another map in 182T and an admiralty chart in 
1844. which was revised to ly(;4, both showino- the l)oundary laid 
down in the same way. The last named map has an inscription on 
the Moundtiry line that it was the one lixed Uy the Treatv of 1825". 

Ant)ther map was published in Russia in iNlll showing- the line 
drawn in the same way, and described as a boundary line under 
the Treaty of 18:^.5''. 

It is fair to jjresume that these njaps or some of them were known 
to (ireat liritain. It is admitted generally in the British Case that 
maps showing the lines so drawn were known to that government, 
but their effect is questioned on the ground that cartographers did 
not know the topography''. 

It is said in the British Case that no disavowal of the correctness 
of such maps was called for l)efore the question arose-. The (jues- 
tion distinctly arose when Russia showed a public claim to all of 
the interior waters and their coasts. If Great Britain understood 
that imder the treaty ''coast" did not include the coast of narrow 
inlets, she was thus called on to make this contention known. The 
inlets and their coasts were known as well then as now, and if the 
treaty meant only what is now styled "general coast" or ''mainland 
coast" an(,l did not include the coasts of narrow inlets, Great Britain 
knew then as well as now that the line could not possibly run 
around the head of Lynn Canal, which was then known to be moi'e 
than twenty-five marine leagues from such geivn-al or mainland 
coast ''. 

If "coast'' was confined to exterior or general coast, then no 
possible arrangement of the mountains could have carried the line 
around the head of Lynn Canal. A distinct claim was promulg-ated 
and maintained })v Russia for forty-two years that certain known 
waters were v. ithin her territory. No claim was made as to precisel}' 
where the line should Ije locatt'd actually on the ground, but a 
continuous llsiefr around all of the sea water \vas. in accordance 
with Russia's understanding of the treaty, distinctly claimed. The 
maps of the period showed suthciently the width of the interior 
Avaters to make the coast line theory now advanced just as applical)le 
then. 



"I'. S. V. Aj.p.. .■'>13, No. IS; U. S. Atlas, Xo. 22; British Atlas. Xo. 15. 
'' i:f. S. Atlas, Xo. 2(t. 
'• British Case, 100-101. 
'i British Case, 101. 



AKGUMENT OF THE UNITED STATES. 141 

THE OFFICIAL MAPS OF GREAT IIRITAIX AXD CANADA SHOWED THE VyDERSTAyi)- 
lyO THAT RUSSIA OWXED ALL OF THE IXTERIOR WATERS AXD COASTS XOW IX 
COXTRO]ERsy. 

Grout Britain not only did not protest against the claim of 
Russia, but announced to the world a like interpretation and main- 
tained such attitude without A^ariation downi to the American pur- 
chase and to the time immediately precedino- this controversy, 
coverino- a pei'iod of over sixty years. 

In 1881 an official map was published, entitled, "Part of Colonial 
Office Manuscript Map,''' which showed the line drawn substantially 
like that laid down on the Russian maps." 

In the same year there Avas published another official map. by 
Bouchette, entitled. "'The British Dominions in North America,'-* 
and showing the line drawn in the same wav. 

In 1833 a map was published by Arrowsmith, which was inscribed, 
by permission, to the Hudson's Bay Compan3\ A note on its face 
refers to the specifications of the Treaty of 1825, and the )iiap 
shows the line drawn sul)stantially as the Russian Government had 
drawn it.'' 

Other official maps showing the line drawn in the same way were 
issued in 1850, in 1853, and in 1857.'^ The 18o<) map was published 
/vy order of tht Jlouse of Counitons. 

In 1857 another map was published by order of the House of 
Coiunioiis, entitled. " Map of North America.'' It has the line drawn 
as in the other maps referred to.- 

In 185(3 (( Br'iiiHli Admhaliy CJiort. No. 2161, which is shown in 
the record to be corrected down to 186(5. was published. This chart 
shows the line laid down as in all the other maps, and designates 
it " Boundary between the British and Russian Territory."'' 

Thus from 1831 down to 1866, the year immediately preceding 
the American i)urchase, the understanding of Great Britain of the 
Treaty as to the sovereignty over all of the waters in dispute, was 

» Britisli Atlas, No. 13. 
f' British Atlas, No. 14. 
'•U. S. Atlas, No. 12. 

''British Atlas, No. 19; U. S. Atlas, No. 17 and No. 19. 
''British Atlas, No. 21; U. S. Atlas, No. 35. 
fV. S. Atlas, No. 23. 



1-1:2 ARGUMENT OF THE UNITED STATES. 

.shown to be in complete accord with the understcinding- shown b}^ 
Russia. 

Ill ISTT, ten years after the American purchase, Great Britain 
published Admiralty Chart No. 787, showing- the boundary line 
drawn in the same way and lettered, "Boundary between British 
and xlmerican Territory." She thus changed the lettering from 
"Boundar^^ between the British and Russian Territory'' to "Bound- 
ary between British and American Territory." « 

That boundary line has continued ever since to l)e shown on 
Chart 787.'' 

THE UXDERSTANDIXG AS SHOWX BY THE MAPS OF RUSSIA AXD OF OREAT BFITAIX 
RECEIVED GEXERAL ACCEPTATIOX BY ALL CARTOGRAPHERS. AXD THE DECLARA- 
TIOXS OF THE OFFICIAL MAPS OF GREAT BRITAIX WERE COXTIXVED WITH THE 
KXOWLEDGE OF THIS VXDERSTAXDIXG. 

A great many maps are shown in the atlases and in the lists, 
which were published at dilfei'cnt periods from 1820 to 1896 in the 
United States, England, France, Germany and Spain, showing the 
boundary line between Russia and Great Britain and afterwards 
between the United States and Great Britain, substantiall}' as it 
had been drawn upon the Russian and British maps'". 

This proved the g-eneral understanding of the enlightened world 
as to the sovereignty established by the treaty of 1825 over all of 
the waters and coasts now in dispute. 

Great Britain "could not have been ignorant of this general under- 
standing. She continued her declarations with a knowledge of it 
and additional weight is thereby given to such declarations. She 
understood the way in which her declarations were accepted, and 
with this understanding reiterated them. Other countries were not 
disinterested parties, but had a direct interest in knowing and deter- 
mining the sovereignty over waters which they might navigate and 

. «U. S. Atlas, No. 38. 

6B. C. C. App., 50. 

•-'U. S. Atlas, Maps N(js. 13, 14, 15, 16, 18, 21, 33, 3-1, 37, 40, 44, 45, 46, 47; 
British Atlas, Maps Nos. 14, 16, 17, 22; Maps and Charts U. S. C. Appendix, 
pp. 512-520, Nos. 16, 18, 19, 20, 22 to 27, inclusive, 29 to 40, inclusive, 42, 43, 46, 
to 51, inclusive, 53 to 67, inclusive, 69, 71, 72, 74, 75, 77 to 84, inclusive, 86, 87; 
U. S. C. C. App., pp. 243-250, Nos. 90, 91, 96, 99, 101, 106, 107, 108, 109, 110, 
112 to 117, inclusive, 119 to 126, inclusive, 128, 129. 



AEGUMENT OF THE UNITED STATES. 143 

coasts upon which they might land. Every nation had a duty and 
a right in respect of the interpretation of the treaty, and the common 
understanding of all nations cannot be set aside as irrelevant, espe- 
cially when it is coupled with representations continued in the light 
of a knowledge of such common understanding. 

The particular inquiry of the fifth question is whether or not it 
was understood that Russia was to have an unbroken lisiere around 
the heads of all the bavs and inlets. This inquiry is not concerned 
with whether or not the line as shown on the maps is accurately laid 
down with a topographical knowledge of the countrv. The line 
must be laid down on the land to meet the conditions which shall be 
developed, but if the contracting parties understood coast to mean 
all of the coast, then the line, no matter what the difficulties may be 
in making it as sinuous as the coast, can never cross it. The evi- 
dence of the maps is in harmony with this understanding as to the 
coast being- all of the coast, and they give a uniform expression of 
such understanding of the two governments. 

The maps relied on were the official, concurrent and harmonious 
utterances of both contracting parties, made after the treaty, and as 
an expression of their understanding of it. They had ail of the 
information necessary for arriving at such understanding, so far as 
the question of there being a continuous Jlsiere around the heads of 
the bays and inlets was involved. They knew when they contracted 
where these waters were, and they also knew where they were when 
they promulgated the maps. Each government knew what it meant 
in the treaty by the word ''coast.'' and a line drawn parallel to the 
coast. If either countrv did not include the shores of narrow bays 
and inlets as '"coasts." and understood that the line was to be drawn 
not parallel to the coast of inlets, but to what has been termed in 
this case "the general maiidand coast," it certainly knew that such 
a line would cut across such a long inlet as Lynn Canal, which is 
fully eighty miles from head to mouth. Knowing all this, then it 
follows that a claim made ])y an official map to all of such inlets 
was a claim that the party making it understood the word "coast'' to 
mean all of the coast, including the coasts of such inlet, and that 
the line was not to cross such waters. The followino- of such a 



144 ARGUMENT OF THE UNITED STATES, 

declanition by a like decUinition was a pi-oclamation of an acquies- 
cence in such understanding. 

Such an understanding as to the coasts of Lynn Canal, which is 
far longer than an\' of the other inlets or bays, necessarily fixes the 
meaning of ''coast'' as to all of the interior waters. There could not 
be one meaning of "coast''' which would include all of the shores of 
Lynn Canal and a different one which would exclude an}^ part of 
the coasts of the other waters in dispute. 

If there was any room for doubt as to the meaning of "coast" 
on the part of Great Britain, such doubt was resolved l)v its public 
declaration of its understanding of the treat3^ 

RUSSIA SHOWED BY HER OCCCPATIOX AXD EXERCISE OE SOVEREIGXTY OVER THE 
WATERS AXD COASTS IX DISPUTE THAT SHE CLAIMED THEM AS WITIIIX HER TER- 
RITORY. AXD GREAT BRITAIX XEVER, DOWX TO THE SALE BY RUSSIA TO THE 
UNITED STATES, ATTEMPTED TO ASSERT AXY JURISDICTION OVER SUCH WATERS 
OR COAST OR TO OCCUPY THEM IX AXY WAY, OR TO (jUESTIOX THE SOVEREIGXTY 
OE RUSSIA OVER THEM. 

It has been shown that, those regions at the time of the treaty and 
for a long period subsequent thereto were valuable only for fishing 
and hunting and the control of trade with the Indians. This deter- 
mined the character of occupation sought and exercised. Kussian 
occupation was partly direct and partly through the natives of the 
country. Their possession and sovereignty were undisputed b}^ any 
other government. Neither Great Britain nor any other government 
ever attempted, so far as shown, in any way after the treaty of 1825 
to establish any relations of sovereignt}' over the natives. Citizens of 
other governments traded with them, but no other government ever 
in any official way came in contact with them. It is not contended 
that any of the natives of that territory held in recognition of the 
sovereignty of any other power. The relations between them and 
Russia were as close as were generally maintained at that day by other 
governments in such remote possessions, ofi'ering so little inducement 
to actual settlement, affording exploitation of such limited variet}', 
and inhabited by a people of such turbulent disposition. 



ARGUMENT OF THE UXITED STATES. 145 

If there had been a conflict of clauns of diii'erent o-ovcrnnients over 
this territoiy. the case would be ditlerent, and strong-er proof tlian is 
forthcoming might be demanded to establish the Russian occupation, 
but no conflicting claim of any character was ever set up and Russia 
was left by all other governments to exploit and develop her terri- 
tories in her own way. The countr}' offered no inducements to set- 
tlers, and the maintenance of garrisons sufficient to maintain constant 
authority over all of that territory inhabited l)y warlike Indians, 
imposed a heavy burden. Therefore, Russia exercised her authority 
from central stations and got on with the natives with as little fric- 
tion as possil)le. there being no real necessitv for governing them, 
but only for maintaining such intercourse as would secure and develop 
the trade in furs. Therefore, there was no reason for locating per- 
manent establishments on all of the coasts or upon all of the inlets. 
The fact that such establishments were not created does not show an}^ 
disposition on the part of Russia not to assert sovereignty, nor is it 
any evidence that Russia did not understand that all of those waters 
and coasts were within her territory. Her understanding on this 
point had been abundantly shown b}^ the maps wdiich she published 
from 1825 down to 1800. 

The evidence does sufficiently establish her understanding in accord- 
ance with the expression given to it by the maps. In 1812 Russia 
created the dignitv of Supreme Chief of the Kolosches. The name of 
Kolosches was given generally to the tribes inhal)iting the northwest- 
ern shore and included those on the Taku and the Chilkat." 

During the ten years following the Treaty of 1S21 the Russians, 
Americans and English all traded with the natives, and the Russians 
and English traded with them in common for another year under the 
Treaty of 1825. It must be borne in mind that during the period of 
this concurrent trading, the Americans and English traded with the 
natives, as inhabitants of Russian territory, and by virtue of special 
treaty rights given for a limited period. After the expiration of the 
trading privileges under the treaty, in 1838, Russia had the Chilkat 
River surveyed.* 

«U. S. C. App., 316. 

'> U. 8. C. Ap])., :!12, 516, No. 45. 



146 argump:nt of the united states. 

FROM 1S!,() TO THE AMERICAS I'VRCHASE, THE HVDSOy'H BAY COMPANY HELD ALL 
OE THE WATERS AND COASTS IX DLSITTE FOR RUSSIA. THIS IIOLDIXO WAS BEGUN 
AND CONTINUED WITH THE KNOWLEDGE AND CONSENT OF GREAT BRITAIN. 
WHICH THEREBY INDICATED THAT SHE UNDERSTOOD THAT UNDER THE TREATY 
OF IHZn THEY WERE TO BELONG TO RUSSIA. 

Oil Fel)rurtiT 0, 1S31>. the Russian-Anierifan Company, hy tlic t-on- 
.sent of Russia, leased to the Hudson's Bay Company, from June 1, 
1840, for a term of ten 3^ears, for commercial purposes, "the Coast 
exclusive of the Islands, and the Interior Country belonging- to His 
Majesty the Emperor of Russia, situated between Cape Spencer, 
forming- the North West Headland of the entrance of Cross Sound 
and Latitude 51'- 40' or thereabouts, say the whole mainland coast 
and Interior country belonging to Russia, together with the free nav- 
igation and trade of tlie waters of that Coast and Interior Country."^' 
. The lease is of "the coast and the interior country l)elonging to 
His Majesty the Phiiperor of Russia.'' It is " the whole mainland 
coast," and "the waters of that coast" and '"the free navigation and 
trade of the waters of that coast." 

The lease further provides that "the Russian- American Company 
shall al)andon every station and trading establishment on that Coast 
and in the Interior Country '"' " ''' they now occupy, and shall 
not form any station or trading estal)lishment during the said term 
of ten years nor send officers, servants, vessels or craft of any 
description for the purpose of trade 'into any of the Bays. Inlets. 
Estuaries, rivers or lakes in that line of Coast and in that Interior 
Country.'" The Russian-American Company had exclusive rights 
as to all Russian territory, and for the period named it yielded these 
rights to its lessee as to all of that coast and its bays, inlets, etc. 
These fresh waters in the strip Ixdonging to Russia were greatly 
desired by the Hudson's Bay Company for controlling the trade in 
beaver skins, the most valuable trade then existing in that region.'^ 

There is no doubt as to what coiist and intei'ior waters were under- 
stood to ])e emt)raced in the lease. The lease was negotiated for the 
Hudson's Bay Company })y (leorge Simpson, who was its chief repre- 
sentative when it went into possession under the lease, and had ])een 
for some time antedating the ti'eaty of l^'2o. with which he was per- 
fectly familiar. 

f'B. C. App., 150. ''U. S. C. C, A])p. 4;!. 



ARGUMENT OF THE UNITED STATES. 147 

In 1847, in an account of a visit made by him to this territory, and 
referring" to the lease, he said that Russia possessed on the mainland 
between latitude 54- 40' and (>()' a strip, and that this strip, in the 
absence of a lease, I'endered the interior comparatively useless to 
England". Thus he understood that Russia owned a continuous strip 
not separated bv inlets, and that the inlets did not belong to Great 
Britain, 

On September 18, 1849. Sir J. H. Felly transmitted a map to Earl 
Grey, saying: 

"... I have now the honor to forward to you a statement of the rights as to 
territory, trade, taxation and government claimed and exercised by the Hudson's 
Bay Company on the Continent of North America, accompanied with a map of 
North America on which the territories claimed by the Hudson's Bay Company, 
in virtue of the charter granted to them by King Charles II. are coloured green, 
the other British territories pink, and those of Russia yellow." '' 

This was written while the Hudson's Bay Company was in posses- 
sion of the Imere under the lease. 

This map is No. 19 in the British Atlas, and shows the Russian 
possessions, as including all of the bays and inlets. This letter was 
pul)lished in the parliamentary papers. House of Commons, and the 
map shows on its face that it was published bv order of the House 
of Conmions, July l!^, 1850. 

In 1857, before a committee of the House of Commons. Sir 
George Simpson testified that he administered a portion of the 
territory which belonged to Russia, w'hich he descrilied as a mar- 
gin of coast marked yellow on the map from 54'^ 40' up to Cross 
Sound. He said that it was "the Avhole of that strip which is 
included between the British territory and the sea." that is, so 
much of the strip as was between Port Simpson and Cross Sound. 
He showed also that he had the whole care of it and that there 
Avere no Russian officers in the territory. This fact, taken in con- 
nection with the agreement with the Russian-American Company 
not to send officers or vessels into that territory during the term 
of the lease, accounts for paucit}" of evidence of special occupa- 
tion by Russia, for the lease was continued down to the time of 



« U. S. C. App. 318. 6 U. S. C. C. App.. 253. 



148 ARGUMENT OF THE UNITED STATES. 

the American purchase. The map rcfen-ed to is No. 35 in the 
Atlas of the United States, and shows the boundary line drawn 
from near the head of Portland Channel around the heads of ail 
the ))a3's and inlets. These were the '^waters of that coast'' which 
passed under the lease. The "margin of coast niarked yellow on 
the map from 5-1^ -40' up to Cross Sound'' showed the coast that 
passed under the lease. 

From tlie making- of the lease to the time he gave his testimony, a 
period of seventeen years, the company of wiiich he had all along been 
chief representative, held all of these waters and all. of these coasts 
under the lease which was made by the express authority of the 
Russian government. Whatever may he said about the width of the 
interior countr}^ intended to pass under the lease, however that may 
vary, there is no room for doubt or variation as to the coasts and the 
bays and inlets. The Hudson's Bay Company attorned to Russia's 
lessee and held all of them under Russia from 1840 until they were 
surrendered to the United States in 1867. 

There was no holding- for Great Britain, and the testimon}' taken 
by the committee of the House of Commons shows that Great 
Britain so understood it. James W. Keen, an emplove of the Hud 
son's Bay Company" from 1858 to 18B8, shows that all of the inlets 
and bays were always considered l)v the Hudson's Bay Compan3"'s 
employees as Russian territory.'^' 

Great Britain knew of the lease, had been pressing for the Hud- 
son's Bay Company a claim for indemnity on account of the Dryad 
affair, and ceased to i)ress it when the lease was made. In 1854, 
during the Crimean War, on account of the relations brought about 
by the lease. Great Britain agreed with Russia to neutrality'^ on the 
Northwest Coast. 

Great Britain was advised that the entire coast and all the interior 
waters were being held and had l)een held for seventeen years under 
and for the sovereignty of Russia. These were the same waters 
and the same coasts claimed by Russia in her maps and shown by 
Great Britain in her maps as ))elonging to Russia. 

It is )iot necessary, to sustain the argument on this question for 
the United States, to uiaintain either that Great Britain approved 
the lease or that the Hudson's Bay Compan}^ was clothed by her with 

't U. S. C. C. App., 228. f'U. S. C. C. App., 14, 18, 44. 



ARGUMENT OF THE UNITED STATES. 149 

such agency as would bind her in such a matter. The inquiry pur- 
sued is as to the original and effective understanding of the parties 
as shown t\v their acts. Russia expressl,y sanctioned the lease and 
sanctioned its renewal," She understood that throughout this entire 
time and in accordance with the rights secured to her b}- the Treaty 
of 1S25, her sub-tenant was holding for her all of the interior waters 
and the coasts now in dispute. This wa-; a holding ])y Russia, 
through her tenant, and was her interpretation of her rights under the 
ti-eaty that, wherever the line might actually be located on the 
ground in the interior, she had acquired exclusive sovereignty over all 
of this coast and all of these waters. This was the understanding of 
her tenant, and it is clear that all of the coast and waters were held 
for Russia and that no part of any of them was held for Great Britain. 
Great Britain was fully advised of all of this ten years before the 
})urchase by the United States. \Yhen the knowledge was brought 
home to her in the clear and full way that it was by Sir George 
Simpson, that all the coast and all the waters now in controvers}' 
had been held by British subjects for Russia for seventeen years, 
she was, if she was not ready to concede that she had no claim to 
any of them, called on to speak. She not only did not protest, but 
permitted this tenancy to continue until it was terminated by the 
American purchase, and continued to issue her official maps declar- 
ing that all of these waters and coasts Avere within Russian territory. 
It was not possible for Great Britain, except by an explicit, affirm- 
ati\'e. direct declaration to Russia, to indicate in a more unmistakable 
way that she concurred in the understanding thus expressed by 
Russia, of which notice was brought home to her that, under the 
treaty Russia was at all events to have a continuous Usiers around 
the heads of all interior waters. 

"U. 8. V. C, App. 14. 



150 ARGUMENT OF THE UNITED STATES. 

THE UNITED STATES TURCHASED ALASKA WITH THE UNDERSTANDING 
ON ITS PART AND WITH A KNOWLEDGE OF THE UNDERSTANDING 
INDICATED BY THE CONDUCT OF GREAT BRITAIN THAT RUSSIA, 
UNDER THE TREATY OF 1825, OWNED ALL OF THE WATERS AND COASTS 
NOW IN DISPUTE. AND HAS HELD THEM AVITH THAT UNDERSTAND- 
ING WITHOUT ANY PROTEST FROM GREAT BRITAIN. DOWN TO THE 
BEGINNING OF THE PRESENT CONTROVERSY. 

rJIE AMEIUCAX PJL'CIIASE. 

The United States Government understood that under. Art. IV 
of the Treaty of 1824. its citizens had a right to trade for ten 
years along that part of the northwest coast that had been cov- 
ered by the Russian ukase north of 51- 10' and the interior waters 
thereof, and that the subjects of Great Britain acquired exactly 
the same rights to exactly the same waters and coasts by the 
Treaty of 1825. 

They were at the termination of the ten years excluded by Russia 
and not bx^ Great Britain. The maps of Russia and Great Britain 
delimiting their adjacent territoi'ics, repeatedly put forth, were of 
common knowledge. They had been uniformly followed by the 
leading cartograpliers of the world. There could not l)e a doubt 
in the mind of any person giving attention to the subject that from 
1826 to 1867 Russia openly, notoriously, continuously, and adversely, 
without challenge from any government, asserted territorial jurisdic- 
tion over all of the interior waters now in dispute and their coasts. 

In 1815 the Department of State recommended to American ves- 
sels not ''to frequent the interior seas, gulfs, harbors and creeks 
upon that coast at any i^oint north of latitude 51^ 1<>'."" 

This was done on account of an official notification of Russia and 
in recognition of her sovereignty over those waters. 

The nature of the Russuin claim and occupation under the treaty 
was a matter of notoriety in Canada. In an editorial in the '"Colo- 
nist,'' publislied in 1863 at Victoria, it was said that the strip of 
land stretching from Portland Canal to ^It. Saint Elias, with a 
breadtii of 3i> miles, "'must eventually become the property of 
Great Britain, either as a direct result of the development of gold, 

" r. S. C. App., 250. 



ARGUMENT OF THE UNITED STATES. 151 

or for reasons which are now yet in the beginning, but whose 
results are certain." It was added that this thirty-mile 'strip should 
not '"forever control the entrance to our ver}' extensive northern 
territory.''" 

There is reason to ])elieve that the Russian Minister during the 
negotiations for a sale showed to Mr. Sunuier, Chairman of the 
Senate Committee on Foreign Helations, what was proposed to be 
sold, by exhibiting to him a map of the Russian Empire, showing 
the Ijoundarv lines substantiallv as now claimed by America and 
certainlv extending around the heads of all bays and inlets with a 
conti nuous HsJere. '^ 

Russia sold in good faith after an undisputed claim of all these 
waters and coasts for fortj^-two years. The United States, relying 
upon the terms of the Treaty of 1825, which was expressly referred 
to in the cession and upon the interpretation put upon it by Russia, 
which was not merely acciuiesced in, after full notice shown to have 
been brought directly to the attention of the House of Commons, 
but actiN'eh" atfirmed repeatedly by Great Britain in its official maps, 
concluded the purchase and paid the consideration in good faith, and 
without anything having been done to indicate even the possible 
existence of a controversy^ in regard to the rights to an\" of those 
waters. If Great Britain had an}' reserved interpretation as to the 
meaning of the word '•coast'" upon which she could found an}' claim, 
such as is now made, to any of the coasts and waters, then upon every 
principle of good faith she was called on to speak. There is not a 
fact now known upon which such interpretation is sought, that was 
not known just as well at that time. Her silence cannot but be 
regarded as another evidence that she then continued to interpret 
the treaty exactly as she had always done, so far as her outward acts 
had indicated, in respect of the coasts and interior waters. 

The United States on this question asks no more than what the 
understanding- manifested by Great Britain demonstrated. 

.1 MEIUi.AX OCCrPA TIOX. 

By Army and Navy. — The Treaty was concluded March 30, 1867. 
On October 18, 18H7, formal transfer was made at New Archangel.'' 

«r. S. C. App., 822. c-U. S. C. App., 330, 334, 335. 

I'V. 8. C. App., .51:5, No. IS. 



152 AKGUMENT OF THE UNITED STATES. 

Oil the same da\' Captain Howard, in coniinaiid of a revenue cutter 
at the mouth of the Chilkat, which in his otHeial report he says was 
'"the terminus of the Hudson Bay Comi)any"s tradino- in Russian 
possessions north," hoisted the L'nited States flag and thus took 
formal possession of the coast at the head of Lynn Canal, part of the 
very coast and interior waters which, l)y the newly discovered inter- 
pretation now advanced liy Gi'eat Britain, was more than tifty miles 
within I^ritish t(M'ritorv. He states that he sent for the head chief of 
the Chilkats and explained to him the transfer of sovereignty by 
Russia to the United States. He also says that there was present 
there on October ITth a pilot and interpreter of the Hudson's Bay 
Company, who came to his ship Hying the Hag of that company and 
wearing the full uniform of an English officer." 

From that day to this the United States has constantly asserted 
and exercised jurisdiction over that coast and the adjacent waters. 

In 1S07 a Coast Survey expedition was sent to Alaska, and in the 
report a description was given of ''the coast of Alaska'' which in- 
cluded the mouth of the 'J'aku River and the Chilkat, where an 
astronomical station of the United States Coast Survey was fixed. '' 

In 1869 General Davis arrested the chief of the Chilkats and some 
of his fellows and contined them.'" In iSTO (lenei-al Davis visited, in 
person, the Taku and Chilkat Rivers.'' 

In 1869 the C S. S. Saginaw made a cruise. sto})ping at Pyramid 
Harbor at the mouth of Chilkat River, and made plans of it.' 

In 1873 Rear Admiral Pennock on his Hag-ship Saranac visited the 
anchorage otf Chilkat village. In the same year he exercised his good 
offices to reconcile the chiefs of the Chilkat and Stikine tribes. ' 

Rear Admiral Taylor states that in 1873 the Saranac, to which he 
was attached, was at the head of Lynn Canal, and that the chief of 
the Chilkat tribe visited the ship in company with several sub-chiefs, 
accepted the authority of the commander and signified that he con- 
sidered himself a subject of the United States and recognized the 
jurisdiction of the United States over the Chilkat people and the 
territory occupied and claimed by them.''' 

In 1875 General Howard, commanding the Depai'tment of the 

"IT. S. C. App., 337, 338, 33i>. ' U. S. C. Apj.., 362. 

I'V. S. C. App., 343. fV. S. C.App., 362, 363. 

n\ 8. C. App., 356, 362. vU. 8. C. App., 407. 
''U. 8. C. App., .357. 



ARGUMENT OF THE UNITED STATES. 153 

ColamI)ia, inspected the mouth of the Chilkat River and the region 
around it/' 

In 187;> Captain Beardslee, who was instructed to restore and 
establish hannonious relations between white settlers and the native 
Indians, reported that the chiefs of the Chilkat and Chilkoot tribes 
had removed all prohil)itions against white men entering that terii- 
torv/' In lySO he fitted out an expedition of miners to that country, 
sending one of his oliicers in charge, and made a tour among the promi- 
nent Indian tribes, visiting the Chilkat and Chilkoot country and 
proceeding up Lynn Canal. He arranged a conference in which the 
Chilkoot chiefs came in a canoe flying the American fiag, and in this 
conference reviewed t'ae relations between the Indians and whites 
and told of the purchase of Alaska by the United vStates from Russia.^ 

In that 3'car he located the Chilkat villages, finding that they 
were beyond doubt in United States tgi-ritor}-, and he also obtained 
a census of the Chilkats and Chilkoots. Surveys were made of 
Taiya Inlet, and river.'' 

In 18S1 Commander Glass, who succeeded Captain Beai'dslee, 
reported a serious outln'eak among the Chilkats in wdiich several 
Indians had been killed, and that he sent an officer to the principal 
village with a party of marines tf> investigate the aflair, directing 
him to put a stop to the fighting. *" 

In 1S81, Commander Lull sent for tlu^ Chilkat chiefs and reconciled 
.some differences between them.' 

In 1S8I, Commanders Lull and Nichols gave certificates to 
Kluhnnat, Donowock and Klanat by which they were recognized as 
Chilkat chiefs.^/ 

Admiral Coghlan, who visited the head of Lynn Canal in 1884, 
states that he visited both heads of the canal, placed a buoy near 
Haines Mission, treated Chilkat and Chilkoot Inlets as part of the 
United States territory and that the authority of the United States 
was not ((uestioned by any one there.''' 

In 1885 Commander Nichols wrote to Dounawaak and Clanatt 
and the Chilkat Indians saying that he held the chiefs of the tril)e 
and the head men of families responsible for the good conduct of 

" U. S. C. App., 360. (T. S. C. App., 380. 

''U. S. C. App., 365. /r. S. C. App., 382. 

'• U. S. C^ App., 365, 374. r/ V. S. 0. C. App., 213; U. S. C. App., 429. 

''U. S. C. Ai)p., 374. I'V. S. C. App., 401-402. 



154 ARGUMENT OF THE UNITED STATES. 

their people, and that the white chief who g-overned the whole 
countrv was angry with them for their ill-treatment of peaceful 
people passing- through their countiy. He warned them that there- 
after he would punish the olienders to the full extent of the law." 

In 188H U. 8. S. Pinta was stationed at Chilkoot Inlet from 
April 2Tth to June 18th. In May and June, 1887, the Pinta was at 
Chilkoot Inlet, the head of Tai3'a Inlet and Chilkat Inlet. ^ 

In 1887 the conunanding othcer of the Pinta had an interview with 
the.Chilkats, including two chiefs, took his vessel to the head of Chil- 
kat Inlet and informed the Indians that they could make their own 
bargains and work or not work, but that they could not interfere with 
or prevent whites from passing through the country over the ti'ail.'' 
In the same year he sent an officer to Klukwan, the head village of 
the Chilkat Indians."' In June, 1887, he reported that his vessel went 
to Chilkoot Inlet and Taiya Inlet, where it remained from Ma}' 26th 
until June 8th.'' He shows in this report that he met a Canadian 
survey party under Mr. W. Ogilvie and that Mr. Ogilvie, having 
previously asked his permission, ''worked across the portage to 
Portage Cove; thence up Taiya Inlet, intending to follow the Indian 
trail over the mountains to the Yukon," etc.^ 

Mr. Ogilvie, in his report to hi* government, speaking of the com- 
mander of the Pinta who interfered in his behalf in an affair with the 
chief of the Chilkoot Indians, said: 

Commander Newell told him I had a permit from the Great Father at "\^'as]iing- 
ton to pass through his country safely, that he would see that I did so, and if the 
Indians interfered with me, they would be punished for doing so. /' 

The statement that Mr. Ogilvie surveyed at the head of Lynn 
Canal i)y consent of the United States is confirmed by the testimon}' 
of Ripinski. •/ 

in a report transmitted in 1887 by Lieutenant Newell, it is shown 
that there was absolute domination by the United States of the 

"U. S. C. A pp., 430. 

bU. S. C. App., 383, 391. 

(-U. S. C. App., 385. 

(iV. S. C. App., 386, 387. 

«U. S. C. App., 391. 

/U. S. C. C. App.,. 216. 

Oil. S. C. C. App., 218. 

Note. In the U. S. Counter Case, page 79, it is stated that in 1887 Dr. Dawson 
met Mr. Cgilvie at Haines on Lynn Canal. They both visited the point named in 
1887, but at different times. 



ARaiTMP:NT OF THE UNITED STATES. 155 

Indian sitiiiition. and that the coast and interior Indians understood 
that the respective territories of Great Britain and the United States 
were divided by a line drawn aljout the Chilkoot Pass, which 
Schwatka called Perrier Pass." This report also shows that a chief 
of the Chilkoot tribe asked "an opinion from the court as to the 
right of his tribe upon the subjects referred to in his statement," 
which statement was as to the ownership of the trail. In March, 
1888, the U. S. District Attornej" gave an opinion as to these rights.^ 

The extracts from logs of United States vessels on duty in Alaskan 
waters extending from 1873 to 1891 inclusive, show repeated operations 
at the head of the Lynn Canal, and that the closest relations were main- 
tained between the commanders of such vessels and the chiefs of the 
Chilkat and Chilkoot tribes.'" 

Lieutenant Commander Dombaugh states that from 1884 and 1886 
the commanding officer of the Pinta was recognized as in authorit}^ 
by the Indians residing on the continental shores from Port Simpson 
to the head of the Taiya Inlet, and !)y the Chilkats and Chilkoots 
above Lynn Canal. '^ 

Lieutenant Stewart, who was on duty in Alaska from 1881 to 1886, 
was personally sent to Tai3'a several times to preserve order between 
Indians and miners.' 

Lieutenant Emmons, in an elal)orate report, shows in substance 
that he was in Southeastern Alaska from 1882 to 1903, with intervals 
of absence, and that the men-of-war to which he was attached cruised 
continually along the mainland coast of Alaska and the outhing 
islands of the Alexander Archipelago, from Portland Channel and 
Dixon Entrance, to the head of Ljnn Canal, visiting- ail of the 
inlets along the coast, in order to preserve order among both whites 
and natives, and to enforce the laws of the United States. He states 
that the absolute jurisdiction of the United States over the inlets 
and arms of the sea to the head of Lynn Canal and its inlets was 
never to his knowledge questioned l)y the whites of an}" nationality 
or the natives resident within those limits.^" 

He further states that during the sunmier of each year of his 
service in Alaska, from 1882 to 1896, it was customary for a naval 
vessel to visit the head of Lynn Canal and spend more or less time 

"U. S. C. App., 392-394. c^U. S. C. App., 400. 

&U. S. C. App., 392, 395, 396. -^U. 8. C. App., 401. 

fl^S. C. App., 397. /U. S. C. App., 402. 

4571— U3 11 



156 ARGUMENT OF THP: UNITP^D STATES. 

at uiK'hor in Portaoe Bay. Pyramid Harl)or and Taiya Inlet, and 
that in ISSil the Pinta spent thirty-live days in those ^vaters and 
maintained an active supervision at the head of Taiya Inlet. 

Under Revenue Officers. —In 1808 a statute was passed extend- 
ing the laws of the United States relating to customs, conmierce 
and navigation over the lands and waters of territory ceded to the 
United States by Russia under the Treaty of 1807." 

As has already been shown, the Lincoln hoisted the American 
flag at the head of Lynn Canal and took possession of that terri- 
tory on the same day that the transfer w^as made at Sitka. 

From that time, without the right being questioned until this 
controvers}' arose, the reveiuie laws of the United States have 
been administered in the territory, including all of the waters and. 
coasts now in dispute. The steamers of the revenue service have 
made annual visits to the coast in question since 1807, entering all 
the inlets and arms of the sea to the head of navigation, for the 
purpose of protecting the reveiuie, enforcing the United States laws 
and preserving peace and order among the natives.''' 

In 1808 the Revenue Steamer Wayanda cruised through the entire 
inland waters of Alaska, stopping at all Indian settlements on 
Lj^nn Canal, including Taiya Inlet. Chilkat Inlet and Berners Bay, 
and also cruised in Taku Inlet. At all places it was explained to 
the Indians that the country had been purchased from Russia and 
that the}' were under the jurisdiction of the United States. Com- 
plaints were heard against chiefs and some of them were removed, 
and the people were directed to choose successors, which was done.'' 

In the same year, as stated b}- Captain M. A. Healv, the United 
States exercised the right of searching all vessels engaged in 
domestic trade in all waters and bays to the head of Lynn Canal.'' 

In 1880 all foreign vessels were forbidden to unload at Chilkat.' 

In 1890 a Collector of Customs was appointed for Chilkat and a 
customs office was established there.' 

In 18!)1, through the Inspector at Chilkat, that tri))e appealed 
to the United States government to set aside a reservation for it.^' 

ff U. S. C. App., olO. <-' IJ. S. C. App., 455. 

bV. S. C. App., 447. /U. S. C. App., 455-458. 

^U. B. C. App., 470-174, 475, 476. .'/ U. 8. C. App., 459. 
''U. 8. C. App., 478. 



ARGUMENT OF THE UNITED STATES. 157 

111 1S!)5 illicit li(iuor was seized and destroyed l)v a revenue 
officer of the United States at a mountain divide al)ove Taiya/' 

In ISiKS a deputy collector was appointed for Tai^'a. in 1899 one 
was appointed for Skagway. and in 1900 one was appointed for 
AVhite rass/> 

Under Ciail Govkrnment. — On ]May IT, 1S81. an Act was 
passed providing a civil government for Alaska. It authorized 
the appointment of a Governor, the establishment of a district 
court with the usual officers and the appointment of four com- 
missioners. The temporar}' seat of government was iixed at Sitka. 
The court was clothed with the civil and criminal jurisdiction of 
district courts of the United States, and the civil and criminal 
jurisdiction of district courts of the United States exercising the 
jurisdiction of circuit courts. It was provided that one term should 
be held each 3'ear at Sitka and one at AVrangell. and that special 
sessions might be held when necessary. The clerk was made ex 
officio recorder of deeds and mortgages and certiticates of location 
of mining claims and other contracts relating to real estate. The 
commissioners were clothed with the jurisdiction and powers of 
commissioners of the United States circuit courts. The marshal 
was clothed with the general authority of United States marshals 
and was charged with the execution of all process. The general 
laws of the State of Oregon, so far as applicable, were extended 
over that territory. 

By section 8, Alaska was created a land district. Parties who 
had located mines or mineral privileges were allowed to perfect 
their title. The occupancy of religious societies at missionary sta- 
tions was confirmed. Commissioners were charged with the duty 
of examining into and reporting upon the condition of the Indians 
residing within the territory. The Secretary of the Interior was 
directed to provide for education and an appropriation was made 
therefor.'' 

Governors were appointed from time to time and the court was 
organized and has been continuously maintained. ^Marshals, clerks, 
commissioners and land office officials have been continuously in 
office from that time to the present time. Such officers have up 

«U. S. C. App., 416, 424, 428, 431, and 461. 

&U. S. C. App., 448. 

<T. S. C. App., 510; U. S. Stat., Vol. 23, 24-2S. 



158 ARGUMENT OF THE UNITED STATES. 

to the present time continuously exercised and maintained unques- 
tioned jurisdiction over every part of the coasts and wat(n-s now in 
dispute. 

The United States mineral laws were extended to Alaska and in 
1805 minini>- regulations were made for the district by the Secretary 
of the Interior and approved l)v the President." 

]Mineral locations were made in 1885 on Berners Bay and in 1886 
on Lynn Canal, twelve miles north of Berners Bay, and were 
subsequentlv patented. '' 

In 1886 Grovernor Swineford arrested a Chilkat chief for assault- 
ing Archbishop Sag-ers."' 

The records in the Department of Justice show particular in- 
stances from 1887 to 1891, inclusive, of persons proceeded against 
criminally for acts done variously on Berners Ba}^, at (Jhilkoot, 
Chilkat, on Chilkat River, and at Tai3'a. Some of the defendants 
were Indians, one of them being an Indian chief, and some were 
white''. 

There are numerous depositions showing the exercise of civil 
and criminal jurisdiction in and about the country bordering upon 
Lynn Canal, Chilkat Iidet and Chilkoot Inlet, and as far inland as 
the sununits of the passes of the mountains next to them, from 
1881 to the present time.' 

The natives in and about Haines, conimonly known as Portage 
Cove, the head of Lynn Canal, Chilkoot Inlet, Chilkat Inlet, and 
on the Chilkat River recognized the authority and jurisdiction of 
the United States over all that country.-'' 

Don-a-wak, a chief of the Chilkats, was appointed by the United 
States authorities an Indian policeman in 1892, exercised the duties 
of a peace officer among his people, and caused arrests to ])e made.^^ 

There are a number of depositions of those who lived for a long- 
period in and about the head of Lynn Canal, who testify that at no 
time did any government other than the United States exercise 

«U. S. C. A pp., 493. 

^U. S. C. A pp., 41(4. 

cU. S. C. App., 4S?,. 

f^U. S. C. App., 407-413. 

'^U. S. C. App., 415, 416, 422-428, 432, 434, 436, 438-441, 446; U. S. C. (.'. App., 
217-220; 222-227; 230-231; 23.3-235. 

fU. S. C. App., 427-8; 436-437; 438; 441-442; 443; 543-550. 

9\J. S. C. App., 427-8. 



ARGUMENT OF THE UNITED STATES. 159 

any authority or jurisdiction in and a])out that reg-ion, and that they 
have never heard any qu(\stion by Canadian oi' British authorities 
of the sovereignty of the United States over the waters and coasts 
about the head of Lynn Canal/* 

Schools and Missions. — In 1880 a school was opened among- the 
Chilkats under the auspices of Americans, which in 1882 had 
seventy pupils.-' 

In 1881 a Presbyterian Mission School was established on Port- 
age Bav near the head of Lynn Canal, at a place afterwards named 
Haines. It was alwavs understood by those engaged in this work 
that the place where this school was located was a part of the Cnited 
States.'- 

In 1881 the location of this mission was recorded at Juneau.'^ 

In 1885 Rev. Sheldon Jackson was appointed General Agent of the 
Department of the Interior for the purpose of establishing schools 
in Alaska.' 

In 1885 a puVdic school was opened at Haines and has continued 
in operation until the present time.' 

In 1888 Gov. Swineford reported that there were thirteen schools 
in operation in Alaska, one of them being at Chilkat.'' 

In 181*2 Governor Knapp reported that: 

The Chilkat district is an important one, containing three canneries, several 
mines, a mission and government school, and half a dozen or snch a matter of 
stores and trading establishments.''' 

Repoets of Governors of Alaska. — Much comfort seems to be 
taken in the Counter Case of Great Britain, p. 77, from the reports 
of the Governors of Alaska from 188-1 to 1902, and a quotation is 
made from that of 1888 in which the Governor wrote that "the 
civil government of Alaska is little, if any, better than a burlesque, 
lioth in form and substance."" For the purposes of this argument 
it may be admitted that the government was insufficient, l)ut no one 
would have a right to take exceptions to that except a citizen of the 

"U. S. C. App., 431, 416-417; 417-422; 425-427; 432-434; 441-442; 446; V. S. C. 
C. App., 217-220; 220-221; 222-227; 230-231. 
bV. S. C. App., 488 and 506. 
fV. S. C. App., 481; 436-437. 
'/U. S. C. App., 437. 
•"U. S. C. App., 481. 
/U. S. C. App., 480. 
9V. S. C. App., 484. 
h\J. 8. C. App., 486. 



160 AR(4UMENT OF THE UNITED STATES, 

United States. Certainly Great Britain was not atiected in its rights 
by anything- complained of in the messages referred to. Governor 
Swineford complained on account of a lack of transportation facili- 
ties for governing satisfactorily a territory ''with a coast line greater 
than that of all the Atlantic, Pacific and Gulf States combined.'"" He 
was not renouncing, on ])ehalf of the United States, jurisdiction over 
any of this coast line. He also complained of the non-enforcement 
of the liquor laws and the fact that Alaska was for seventeen years 
without any civil government. It will hardly be contended that the 
establishment of a civil government was a condition precedent to the 
manifestation by the United States, by occupancy, of its understand- 
ing as to what waters and coasts it acquired from Russia. He com- 
plained of lawlessness upon the part of individuals, but in no 
instance of any encroachments upon the part of Great Britain. 

In his report of ISSO he points out the neglect to educate the 
Creoles.'' 

In 1S87 he attacks the administration of the Alaska Commercial 
Company, and again refers to violations of the criminal law.'' 

In 1888 he points out that proper provision had not l)een made 
for ac([uiring title to land. In this report he again calls attention 
to the aljuses l)v the Alaska Commercial Company. In referring to 
the tei'ritor}" under him, he speaks of the Chilkats located on the 
Chilkat River at and around the head of Chilkoot Inlet and their 
claim of exclusive ownership of the trail leading from the tide- 
water to the Yukon River. It is from this report that the quota- 
tion in the British Counter Case is made. He is made to saj^ that 
"the civil government of Alaska is little, if any, better than a 
burlesque, both in form and substance ""'' 

The quotation is of a part of a sentence which in its entirety 
reads as follows: 

Aside from the partial adniinistratidu of justice by the Uniteil States District 
Court and before United States commissioners acting principally as justices of the 
peace, the civil government of Alaska is little, if any, better than a l)urlesrj[ue 
both in form and substance.'' 

His strictures applv to that part of the civil government under 
him. He does not undertake to show that the administration of 

«B. C. C. App., 19. '-B. C. C. App., 21. 

&B. C. C. App., 20. '^B. C. C. App., 23. 



AEGUMENT OF THE UNITED STATES. 161 

justice by the courts and the maintenance of jurisdiction by the 
United States in and about the head of Lynn Canal was either 
partial or ineti'ective. It is abundantly shown in this record that 
such jurisdiction has been constantly exercised from 1884 down to 
the present time in all that region. The Governor indulged freely 
in the ordinary right of an American citizen to criticise his own 
government, which took its rise from criticism, protest and revo- 
lution. He would have been very far from renouncing anv of its 
jurisdiction. 

The extracts from the reports of the other governors which 
appear on pages '■2'2 to 36 of the Appendix to the British Counter 
Case are of the same character. 

Opinions expresseil by officials and citizens of the United States 
in public prints as to the condition of Alaska since the i\.merican 
purchase, appear on pages 3(> to 44 of the Appendix to the British 
Counter Case. They are certainly not flattering to the United 
States. While they may ati'ord .satisfaction to those exhibiting 
them, and giving them such prominence, the deduction to be drawn 
from them may not be so pleasing. They apply to territor}^ now 
in dispute, or else there w^ould be no shadow of excuse for bringing 
them forward. They just as certainly prove that all of their authors, 
whose writings extend over a period from ISTl to 1898, inclusive, 
regarded the territor}^ as belonging to the United States, for the 
burden of all of them is the responsibilit}' of the United States for 
the deplorable conditions so feelingly depicted. 

They did not charge any of the responsil)ility to Great Britain 
and were not speaking of British territor}-. 

As much or even more might be found arraigning Great Britain 
for its administration of Canadian affairs at early periods, or the 
United States for its administration of the Philippines, but such 
arraignments, instead of negativing jurisdiction and sovereignty, 
find their ntUoii tV etre in the fact of sovereignty. 

United States Census. — In 1880 a census was taken of the 
Alaskan Indians, and among those enumerated by the United States 
officials were the Chilkats and Chilkoots, the village of Klukwan 
being included in the census.^' 

«U. S. C. A pp., 489. 



162 argump:nt of the united states. 

In 1890 a coiisus was taken which included those living- on Ber- 
ners Bay, at Chilkat, Chilkoot. Klukwan and Pyramid Harbor/' 
FoSTOFFiCE. — A postoffice was established at Haines, Jul}^ 22, 1882,^ 

UNITED states MAPS. 

In 1807 an ofHcial map was pul^lished by the United States, prepared 
at the sug-gestion and partly under the supervision of Senator Sumner, 
showing the boundary line substantially as it had been uniformly 
drawn on the official maps of Russia and of Great Britain down to that 
time and so as to include all of the coasts and waters now in dispute 
in United States territory.^ Five hundred copies of this map were 
printed at tirst, and there w^as a second edition issued in the same 
year.'' 

There has never been any material change, so far as this boundary 
line is concerned, in the official maps of the United States. 

BRITISH AND CANADIAN MAPS AFTER 1867. 

In 18()S was puljlishecl the Journal of the Royal Geographical Society 
of London, which contained a map entitled "Map of British Columbia, 
reduced from the original Map by Mr. Alfred Waddinglon.'' This 
map shows the l)oundary line so drawn as to place all of the waters and 
coasts in dispute in United States territory. The high authoritj" 
of the society publishing it and the place whence it emanated are 
sufficient warrant for mentioning it. 

The British Colonial Office List for the years 18011 to 1902, inclu- 
sive, contains maps siiowing- the Alaska Nstere substantially as claimed 
by the United States. In the issue of 1901 there appeared at the foot 
of the title page the following: 

"This list, though (.'omiiileil from othcial rerords, is not an ofhcial puljhcation." 

There does not appear to have been any such disclaimer for any 
of the previous years. '^ 

Reference is ag^ain made to British Admiralty Chart 787, published 
in 1877, and already cited on p. 112. 

In 1878 there was published by the Dominion Land Office a map 
entitled "Tracing of part of 'Alaska,' showing " Stakeen River,' 
from U. S. Coast Survey of 1809.'' This shows the l)oundary line 
crossing the Iskoot and Stikine and Taku rivers. The map does 

«U. S. C. App., 490. ('U. S. C. App., 541. 

I'U. S. C. App., 496. ' r. S. C. C. App., 245. 

^U. S. Atlas. No. 24. 



ARGUMENT OF THP: UXITED STATES, 163 

not show much territorv north of Taku River, but it plainly shows 
the trend of the boundary line so as to put all of L^'nn Canal in 
Alaska." 

In 1878 was published an othcial map of Canada. l)y the ]\Iinister 
of the Interior, shoAvino- the lioundary line laid down as on the 
previous maps/' 

In 1882 and 1883 official maps were published by the Department 
of Railways, of the Dominion of Canada and the Province of Quebec, 
respectivelv, showinu- a simihir boundary line.'' 

In 1884 was published a " Map of the Province of British Colum- 
bia," by direction of the Chief Commissioner of Lands and ^Vorks, 
which shows the line so drawn as to put all of the coasts and waters 
in question in Alaska, and lettered '" xlpproximate International 
Boundary by Convention between Great Britain and Russia. 1825."'' 

In the same year was published a Canadian geological map laying- 
down the line in the same way.' 

In 18^1 was i)ul)lished by Johnston. Geographer to the Queen, 
a map of the Dominion of Canada, which also laid down a like 
boundary line. ' 

The Dawson jNIap of 1887. — The first map which showed a 
departure from the interpretation as to a continuous I/.s^tTe around 
the heads of the bays and inlets, manifested hy Russia and Great 
Britain down to the American purchase in 1867, and by the United 
States and Great Britain from that time on, which interpretation 
was accepted by the world at large, was what is designated as the 
''Dawson Map" of 1887.'^ This map shows a line laid down in 
accordance with the contention of the United States. It also shows 
a line approximating the lino now contended for by Great Britain. 
This line is labeled "Line approximately following the summits of 
mountains parallel to coast." These lines were no part of the orig- 
inal publication, and. therefore, even if the map was official as pub- 
lished, the lines constituted no part of such official ])ul)lication. 
Lord Lansdowne. speaking of it, said: 

As originally publislied it sliowed no iMjundary linei^, hut u2:)on a few copies 
lines were drawn in ink by Dr. Itawsony' 

" British Atlas, Xo. 27. f British Atlas, No. 32. 

^U. S. Atlas, No. 39. fV. 8. Atlas, No. -io. 

c\J. iL Atlas, 42, 43. .'/British Atlas, No. 34. 

''British Atlas, No. 31. -'' U. S. C. C. App., 159. 



164 ARGUMENT OF THE UNITED STATES. 

So far as shown, this line is the result of private enterprise. The 
first semblance of official endorsement was when Lord Lansdowne, 
in a letter of August 18, 1002. to Mr. Raikes, guardedly said: 

That the Hue followinijf the mountains parallel to the eoast, cro^t^ing all the 
larger inlets, must at the time have been accepted as embodying the Canadian 
view of the meaning of the Treaty of 1825, is ehown by the additi(3n by the 
United States authorities to the Jhc simili' (at the top and outside the border'of 
the map) of the words "Dawson's Canadian ^Map, 1887, showing conventional 
lines proposed by Canada." " 

He does not say that Dawson's contention as to the line crossing- 
all the larger inlets was the Canadian view, and nuich less does he 
say that it was at any time advanced as the view of Great Britain. 
His statement is purely argumentative as to its acceptance as such 
by the United States. It is unsound upon its face. The addition 
by the United States authorities speciiied '" conventional lines pro- 
posed by Canada.'' The conventional line marked upon the map 
as such is far to the interior of the line drawn by Dawson crossing- 
all of the larger inlets. Lord Lansdowne shows that the map only 
exhibits one of the conventional lines discussed during the confer- 
ences, and that it was not possible to draw the second conventional 
line, as this depended upon geographical details not determined 
at that time. Then how can it be urged that the addition b}- the 
United States, which referred alone to '"'' conventional lines proposed 
b}' Canada," is evidence that at the time '"' the line following the 
mountains parallel to the coast, ci'ossing all of the larger inlets, was 
accepted as embodying the Canadian view of the meaning of the 
Treaty of 1825 " i C^onventional lines were discussed with a view 
of fixing a line which did not correspond to the Treaty and which 
was to be adopted by a new agreement. No line spoken of as a 
conventional line would have been regarded as putting forward 
an}^ theory of interpretation of the treaty. That Canada had not at 
that time adopted the Daw^son theory is shown by the British Colo- 
nial Office List down to and including lUt)2, which is in direct 
conflict with the Dawson theory and in perfect accord with the 
theory of the United States.''' 

In 1803 an official British Columbia map showed a line lettered 
"'Approximate international l)oundary l)y Convention between Great 
Britain and Russia, 1825,''' which crossed Lynn Canal above Ber- 

" U. S. C. C. A pp., 159. '' U. S. C. C. App. 245. 



ARGUMENT OF THE UNITED STATES. 165 

ners Bay, but did not adopt the Dawson theoiy. for it left the 
Avhole of Taku Inlet in Ignited States territoiy/' 

In 1805 the}' o-rew a littler bolder and issued a map which appro- 
priated all of Taku Inlet." Thus it was eight years after the pub- 
lication of the Dawson map befon^ any official map was issued 
based on a theory like his. As has been previously shown, no 
such change was ever made upon the maps published by Great 
Britain. 

NOTHING WAS DONE ON THE PART OF GREAT BRITAIN UNTIL 1898 
INDICATING A CLAIM, CONTRARY TO THE UNDERSTANDING "WHICH 
SHE HAD PRIOR TO THAT TIME MANIFESTED THAT RUSSIA, UNDER 
THE TREATY OF 1825, WAS OWNER OF ALL THE WATERS AND 
COASTS NOW IN DISPUTE, AND THAT THE UNITED STATES HAD 
UNDER THE TREATY OF 186T ACQUIRED ALL OF THEM FROM 
RUSSIA, AND NOTHING HAS EVER BEEN DONE BY THE UNITED 
STATES INDICATING A CONTRARY UNDERSTANDING. 

PJiOPOSITIOXS TO SURVEY. 

An effort is made in the British Case to break the effect of the 
interpretation put upon the Treaty by Russia and Great Britain, 
as displayed l)y the conduct of both governments, doAvn to the 
time of the purchase by the United States, and also the efl'ect of 
the understanding shown by Great Britain and the United States 
subsequent to the purchase, by attempting to show that the occu- 
pation by the United States of the coast and waters in question 
was against protest, or while the question w'as snh jiidice. 

It must be borne in mind that the inquiry now is as to the proper 
answer to the Fifth Question, and that nothing can be relevant unless 
it bears upon the interpretation put by the parties upon the Treaty 
in respect of its purpose to give or not to give to Russia a contin- 
uous lis/ ere around the heads of all of the 1)ays and inlets. The 
mere fact that there was an undetermined line is not significant. The 
mere fact that there were negotiations to determine where the line 
should be laid down in the interior has no bearing. Such things 

a U. S. Atlas, No. 28. 



166 ARGUMENT OF THE UNITED STATES. 

only are of importance which disclose the \ lews of the parties one 
way or the other upon the point of inquir}'. 

The points made in the British Case will he considered in the 
order in which they are advanced. 

XEGOTIATIOXS FOR DELIMITArioX OF BOVyDAHY FFofX IX XOVKMIIER. isrj. 

These negotiations began forty-seven years after the Treaty with 
Russia and tive years after the United States took possession of the 
head of Lynn Canal. As shown, the government of the United 
States issued an official map in 1867, showing that the boundary ran 
somewhere on the land around the heads of all interior waters and 
approximately ten marine leagues therefrom. This map was sub- 
stantialh^ in accord with the British official maps down to the very 
3'ear when this correspondence began, and all of these nvd])s were 
in this respect like all of the official Russian and British maps 
from the time of the Treaty of 1825. 

The correspondence was initiated by an addi'ess of the Legislative 
Assein1)ly of British Columbia to Lieutenant CTO\'ernor Trutcli and 
■a letter by him to the Secretary of State for the Provinces, July 
11, 1872, in which he said: 

The houiKlarv line iDetweeu the British Possessions in North America and the 
present United States Territory of Alaska— formerly Russian America — is laid 
down in the Convention of 1825, Articles 3 and 4. 

But the description therein given of this line of demarcation is not so clearly 
defined as to render it readily traceable on the ground. 

The initial jioint of this line on the mainland is de1)ata))le, and the line of 
demarcation thence followino; the smnmit of the coast range of mountains to the 
141st meridian west, but limited, whenever such summit shall be found to be 
more than ten marine leagues from the ocean, to a line drawn jiarallel to the 
coast, and at a distance of ten marine leagues therefrom, following all the sinu- 
osities thereof, cannot in practice be determined. 

I therefore concur with my ministers in thinking that it is desiral;)le that some 
more clearly marked or definitely ascertained line should be substituted for that 
described in the Convention above referred to.« 

He thinks that the difficulty is that the line is not so clearly 
defined "as to render it readily traceable on the ground.-'' He 
understands that if the mountains fail, the line must l)e drawn 
''parallel to the coast and at a distance of ten inai'ine leagues 
therefrom, following all the sinuosities thereof." and he further 

«B. C. App., 163. 



ARGUMENT OF THE UNITED STATES. 1(37 

regards such line as impracticable and urges that a substitute shall 
Ije ado])ted. 

Surely he did not mean any such line or any such coast as is 
now contended for by Great Britain. He undei'stood that '"all the 
sinuosities" of the coast were to be followed. 

It appears that an inquiry was made by Sir Edward Thornton of 
Secretary Fish as to whether or not the United States Government 
"would be willing to agree to an appointment of a Conmiission 
for the purpose of defining the boundary line," and that ]\Ir. Fish 
replied that he was satisfied of the expediency of such a measure, 
but feared that Congress might not be willing to grant the neces- 
sary funds." 

Mr. Fish, in a subsequent interview of Novem])er K!. 1872, said 
that the President was ''so impressed with the' advantage of having- 
the boundary line laid down at once" that he was disposed to 
recommend it to Cong-ress.*' 

The proposition communicated to the United States was to 
appoint a Commission *'for the purpose of defining the boundary 
line." Nothing was .said by an}' one about interpretation of the 
Treaty or as to any doubt about what coast or waters were meant. 
The President spoke ''of having the boundary line laid down."- 

In consonance with this view, in his message to Congress of 
December 2. 1872, he refers to "the actual line" and recommends 
the appointment of a Commission '"to determine the line."' He 
clearly meant the determination upon the ground of the actual line.^ 

There is not the remotest suggestion that any (question was 
mooted, as to the interpretation of the Treaty or as to the right 
of the United States to Lynn Canal, all of which had been entered 
upon and had been brought under the jurisdiction of the United 
States. 

Sir Edward Thornton was advised, and in turn advised Earl 
Granville, that the message contemplated a Connnission "•for the 
purpose of laying down the boundary line."''' 

The Ijill introduced into Congress was "for the purpose of sur- 
veying and marking the line of boundary."' and there was no i)ro- 
vision except for such pi-actical work. A copy of this l)ill was 
sent to Earl Granville. '' 

«B. C.%Vpp., 164-165. .B. C. App., 166. 

''B. C. App., 165. 



168 ARCUTMENT OF THE UNITED STATES. 

The British (TO\'ormiient Jigreed to share in the expense of "de- 
terniining and niarkino- out the ])oundary line."'''^' 

On February 15, 1873, Sir Edward Thoi-nton wrote to Pvarl 
Granville that Mr. Fish informed him that the estimated expense 
to the United States alone was about a million and a half of dol- 
lars, and that it would require ten years, and that Mr. Fish said 
that the Engineer Department had expressed an opinion that, 

under the present circumstances of the twn I'ouiitries it Avonld be (juite sutticient 
to decide upon some particular points, and the iirinci])al of these they snuwested 
sliould Ije tlie liead of tlie rortland Canal, the points where the boundary line 
crosses the Rivers Shoot, Stakeen, Taku, Iselcat, and ('lielkaht, INIount St. Elias, 
and the points where the 141st degree of west longitude crosses tiie rivers Yuken 
and Porcupine.'^ 

The suggestion of Mr. Fish was in perfect harmony with Avhat 
President Grant had said and what was contained in the Act intro- 
duced in Congress. It was Avholly irreconcilable with the present 
contention of Great Britain. Jf any one authorized to speak or act 
for the Canadian Government or Great Britain entertained any idea 
at that time that the word ''coast" in the treaty did not include all 
of the shores of all of the bays and inlets, he, so far as the United 
States was advised, kept it a profound secret. 

On November 27, 1873, the Canadian authorities recpiested Cap- 
tain Cameron to report ujDon the ''cost and duration of the proposed 
survey" and transmitted to him an extract from the dispatch eml)ody- 
ing the suggestions of Mr. Fish as to deciding upon "the points 
where the boundar}- line crosses tlie Kivers Shoot, Stikine, Taku, 
Iselcat, and Chelkaht."'' 

In the official submission of this extract to Captain Cameron there 
was no reservation as to the line crossing these rivers. 

On January 1!>, 1871, Lieutenant Governor Trutdi wrote to the 
Canadian Secretary of State enclosing an address of the Legislative 
Assembl}^ of the Province of British C'oluml)ia urging that imme- 
diate steps be taken "for having the boundary line between this 
province and Alaska established and defined.""' 

Enclosed with it was a letter from the clerk of the Assembly to 
Lieutenant Governor Trutch transmitting a resolution of the House 
concluding as follows: 

And, whereas, the l)oundary of the thirty-mile belt of American territory 
running along a part of the seaboard seriously affects vital questions bearing 

«B. C. App., 167. 'B. C. App., 173. 

6B. C. App., 168. '/U. S. C. C. App., 49. 



AEGUMENT OF THE UNITED STATES. 1(>9 

upon naviiiation and coinnieTce, Ite it therefore resolved, that a respectful ad- 
dress 1)e presented to his Honor, the Lieutenant Governor, reconnnendino; him 
to urge npiin the Federal Government the necessity nf takinij immediate stejJS 
for havimr the said lioundarv established and detined." 

On Fi'hrimrv IS. 1874. Sir Edward Thornton tran-miitted to 
Ctiptiiin Ciuneron a foninnmication from Lord Tenterden fttrnish- 
ino- him with certain dociiment.s in reg'ard to the Ahiska boundary-. 
The.se documents emhi'aced the Treaties of 1S24. 1825 and 1867, 
and maps of the territory/' 

On Fel)riiai\v 17. 1874. J. S. Dennis. Surveyor General of Canada 
made a report to the ^linister of the Interior, in which he shows 
that he had ])efore him the extract covering- the suggestion of Mr. 
Fish, the description of the boundary given in the treaty, and a 
tracing from the official map published by the Government of the 
United States '"of the surveys of the northwest coast of tlie Pacitic 
and showing the whole boundary from the head of the Portland 
Canal to the Arctic Ocean.''' 

A part of this map is shown as No. 27 of the British Atlas. The 
boundary line crosses the Iskoot and Stikine Rivers and the Taku 
River about ten marine leagues from the head of Taku Inlet. The 
line where the map is discontinued is shown to proceed noi-thwardly 
parallel with the coast and so as to include Lynn Canal. 

^^'ith all of this information before him. Mr. Dennis said: 

The undersigned is of opinion tliat it is unnecessary at present (and it may 
be for all time) to incur the expense of determining and marking any portion 
of the boundary under consideration other than at certain of the points men- 
tioned in the extract allude<l to in the dispatcli from Sir Edward Thornton to 
the Earl of Granville, dated February 15, 1873, that is to say: 

1. The head of the Portland Canal, or the intersection of the same Ijy the 
5Hth parallel of north latitude. 

2. The crossing of the following rivers on the Pacitic Coast l:)y the said 
])oundary, that is to say: The Elvers "Shoot," "Stakeen," "Taku," "Isilcat," 
and "Chilkaht."'' 

He further says: 

And, further, the United States surveys of the coast could be advantageously 
used to locate the coast line in deciding the mouths of the rivers in question, 
as points from whence the necessary triangulation surveys should commence, in 
order to determine the ten marine leagues back, and might further be agreed on 

«U. S. C. C. App., 50. cB. C. App., 177. 

UI. S%C. C. App., 51. (IB. C. App., 177-178. 



170 ARGUMENT OF THE UNITED STATES. 

and adopted l)y the Coininifif;i()iu'rs as affdrdiiijz the data which, in their ihseretion, 
might be u^eil to regulate the difection and location of the Ijoundary across the 
valleys of those rivers. 

He, with the understiindino- of the United States clearly stated 
in accord with its present contention as to a oontinuoas l/.'^iere, 
expresses himself as fully in accord with it. for he says that the 
"coast line'' is at the mouths of Taku and Chilkaht Rivers, and 
that from these points the measurement of the ten leao'ues back 
must he l)eoun. 

On February IS, 1875, ^Nlajor C'ameron submitted his report. It 
is admitted in the British Case that he was supplied with a copy 
of Sir Edward Thornton's dispatch and later with a memorandum 
made by Mr. J. S. Dennis, in which the cost of the survey sug- 
gested by Mr. Fish was discussed. The Case, however, omits all 
mention of the recommendation just shown to have l)een made by 
Mr. Dennis." 

Major Cameron also had the written report prepared by General 
Humphreys, United States Chief of P^nglneers, in which, after recit- 
ing the course of the boundar}- line provided for by the Treaty, 
he, in view of the great cost of marking the line, suggests that 
certain points be tixed, mentioning, among others, the following: 

To ascend the Stakeen, Takee, Chillcat, the Alsekli rivers, and fix the points 
of intersection with boundary line.'' 

The British case quotes from Cameron's report as follows: 
Wliile the United States Government have indicated a definite plan of ])ro- 
cedure, and named tlie points of the boundary which they consider it essential 
should be marked, the Government of Canada make no reference to such details, 
and, therefore, leave it to be assumed that they expect the terms of the Treaty 
to be fully and strictly carried out. 

The cost of marking the line will be seriously affected by the view which 
may iirevail <m this subject.'' 

This excerpt gives an entirely erroneous impression of the views 
entertained by Major Cameron as shown by his report. He also 
says: 

The Treaty describes a line which, in its course northerly from Portland 
Channel to its intersection with the meridian of 141 west longitude, traverses 
a very mountainous and heavily wooded country, and defines it as following: 
"The summit of the mountains situated parallel to the coast," or, where moun- 

"B. C. -29. <B. C, id-SO. 

'>U. S. C. C. Ai)p., o0-n2. 



ARGUMENT OF TBE UNITED STATES. I7l 

tains are not within ten marine leagues of the sea, then "parallel to the wind- 
ings of the coast" at no greater distance than ten leagues. 

To carry out these terms it would be necessary to complete a survey of the 
belt of country between the coast line and mountain summits, about 900 miles 
in length, and occasionally, perhaps, ten marine leagues in breadth. 

The coast line might furnish an exceptionally advantageous base for supplies; 
but notwithstanding this advantage the difficulties with which the surveying par- 
ties would have to contend in their progress inland, the necessarily circuitous 
course of their movements, and the extreme irregularity of the line to be 
marked — at times passing from mountain top to mountain top, at others repeating 
the meandering of a coast, broken by numerous bays, long, narrow inlets and 
river mouths — would be of the most serious description." 

It is too clear for question that he here meant b\" "coast" the 
"coast" of the very baj's and inlets now claimed by Great Britain. 
He further says: 

Principal depots should be established at Fort Simpson, at the mouth of Port- 
land Channel, and at Fort Yukon, where Porcupine Eiver joins the Yukon River, 
to meet the requirements of the expedition if the proposed alteration in the 
Treaty stipulation be not adopted. Should the alteration be approved, no prin- 
cipal depot would be needed at Fort Simpson, but, instead, one would have to be 
established at the head of navigation up Linn Channel. Here, too, winter quar- 
ters for the party, or a portion of it, might be most conveniently placed. '' 

Why should he want to establish a depot at the head of Lynn 
Canal for the purpose of marking a line parallel to a coast line 
crossing Lynn Canal over fifty miles seaward of the head? 

It cannot be assumed that Sir Edward Thornton was ignorant of 
the report of Mr. Dennis and Major Cameron. As shown, he had 
transmitted the suggestion of Mr. Fish as to the location of the 
boundary on certain rivers, which proposition could carry with it 
nothing less than an assumption that the United States owned all 
of the waters and coasts of the bays and inlets. On September 27. 
1875, he reported to the Earl of Derl)y an interview between him- 
self and Mr. Fish, in which he says: 

I observed that when the question of laying down the boundary was discussed 
about two years ago, it was suggested that if the whole survey could not be 
made, the points where the territories met could be fixed on the rivers which 
run through both of them. '' 

He did not intimate that he excepted any of the rivers that 
Mr. Fish had designated. 

«B. C. App., 181. 'B. C. App., 183. 

&B. d* App., 182. 

4574—03 12 



172 ARGUMENT OF THE UNITED STATES. 

On the iJlst of November, 1S76, in a report of a committee of 
the Privy Council, approved by the Governor General and made to 
the Minister of the Interior, is inchided a memorandum from Mr. 
Mackenzie, referring to the desirability of having- a complete or 
partial determination of the boundary line, and the Privy Coun- 
cil concurred in the memorandum. This memorandum is a review 
of the correspondence between the two governments in regard to 
the necessary steps to have the boundary determined and marked. 
It speaks throughout of "laving down the boundary line," and 
recites that Mr. Fish "had further stated that the Department had 
expressed an opinion that under the present circumstances of the 
two countries, it would be quite sufficient to decide on some par- 
ticular points, and the principal of these it is suggested should be 
the head of the Portland Canal; the points wdiere the boundary line 
crosses the Rivers Short, Stikine, Taku, Iselcat, and Chelbraht."" 

The memorandum concludes: 

The undersigned recommendn that Her Majesty's Government should again 
request the United States Government to join in a joint commission to determine 
on the points where the boundary intersects the Stikine River, and such other 
points of those mentioned by INIr. Fisli in his eonnuunication to Sir Edward 
Thornton in February, 1873, as may be considered advisable, and that in the 
meantime the status quo should be maintained. '' 

Thus it appears that the question of fixing the boundary had been 
under constant consideration from September 20, 1872, down to 
November 21, 1876, a period of more than four years, and that the 
suggestion made by Mr. Fish in 1872 as to determining the points 
where the boundary line crosses the rivers named had been repeat- 
edly under consideration by the British representative at Washing- 
ton, the Prime Minister, Privy Council and Survej^or General of 
Canada, and the Foreign Office in London. It further appears that 
so far from any suggestion being made that (jreat Britain was enti- 
tled to any of the waters and coasts, which would be necessarih" left 
in American territory by fixing a boundary line on the rivers named, 
which waters and coasts include all of those now in controversy, the 
proposition of Mr. Fish was acquiesced in and was, as has been al)ove 
shown, again recommended to be brought to the attention of the 
United States Government for its favorable action. 

«B. C. App., 189. '' B. C. App., 191. 



ARGUMENT OF THE UNITED STATES. l73 

SURVErOFSTIKINE RIVER BY HVSTER AXD ADOPTION OF PROVISIOXAL LIXE IX 1S7S. 

The survey of the Stikine River was the sul)ject-uiatter of a 
report made liy Mr. Hunter in June. 1877/' Referring to Hunter's 
surve3% the British Case says: 

"Having regard to the proviso subject to which this arrangement was accepted 
by the United States (Tovernnient, Mr. Hunter's survey has no l)inding effect. 
The incident is, ho\Yever, of importance in that it brought to the attention of the 
United States Government, the manner in which it was considered on the side of 
Great Britain the Treaty ought to be applied."'' 

The purpose of this statement is involved in some doul^t, but if 
it is meant to say that there was anything in Hunter's survey and 
report to indicate to the United States Government that the treat}^ 
ought to be applied in the way now sought, that is to say, by run- 
ning the line along mountains parallel with a part of the coast, but 
perpendicular to the coasts of the baj^s and inlets, and so that in 
drawing the boundary line parallel to the sinuosities of the coast, as 
provided for in the treaty, it should be drawn parallel only to the 
general coast, cutting across the coasts of interior ba3\s and inlets, 
leaving those waters in British territory, then the proposition is 
denied. 

The instructions given to Mr. Hunter by Surveyor General Den- 
nis were to proceed to the Stikine River for the purpose of sur- 
veying it and making a reconnaissance of the country emliracing 
the coast range of mountains in the immediate vicinity, so as to 
ascertain the boundary on that river. ^ Inasnmch as the mouth of 
the Stikine River was on the so-called general coast, and as Hunter's 
survey was confined to that river and the mountains crossing it, 
nothing whatever can be predicated on his surve}' in regard to what 
was the meaning of the word "coast" as applied to bays and inlets, 
and it is entirely inconsequential so far as the answer to the Fifth 
Question is concerned. 

Certainlv no such view was entertained by the British Govern- 
ment. On October 9th following the report, which was made in 
June, Mr. Plunkett, British Charge d'Atfaires at Washington, in a 

B. C. App., 226. 6B. C, 34. '• B. C. App., 224. 



174 ARGUMENT OB" THE UNITED STATES. 

letter to Mr. Richards, Deput}" Governor, said, speaking of the 
United States, that: 

They should at least accept our proposal to fix certain spots where the rivers 
pass out of British into American territory. « 

This must have referred to the rivers which had been repeatedly 
mentioned in the previous correspondence. On October 1st of the 
same year, in a letter to Mr. Evarts, he said: 

Sir Edward Thornton, in his note to Mr. Fish on the 15th of last January, 
acting on instructions received from the Earl of Derby, urged the United States 
government to unite in a joint commission to determine where the boundary 
intersects the Stikine River, and also such other points on the frontier as might 
be considered advisable." 

Mr. Plunkett closed with the expression of the hope that steps 
might be taken if possible for calling the attention of Congress to 
this important question. 

On December 0, 1877, a committee of the Privy Council, refer- 
ring to the report of Noveml)er 21, 1876,'^ and of the recommenda- 
tion made in its conclusion, added: 

The points indicated by Mr. Fish were the head of the Portland Canal, the 
Rivers Iskoot, Stikine, Taku, Isalcat, and Chelkalit. <' 

While the report of December 6, 1877, said that there was no 
urgency, except for fixing the boundary on the Stikine River, there 
was not the remotest dissent intimated from the accepted view that 
the boundary line would cross all the rivers named. 

This report was submitted by the Earl of Duflerin to Sir Edward 
Thornton, and on December 13, 1877, Sir Edward Thornton advised 
the Earl of Dutierin that in consequence of the receipt of his des- 
patch he called at the State Department, and, not finding the Sec- 
retar}' in, "spoke to Mr. Seward on the subject, and suggested 
that if Congress could not be induced to grant a sum of mone}' to 
lay down the whole l)oundar3% or even the points formerly indi- 
cated by Mr. Eish. at least a boundary' upon each bank of the 
Stikine might be decided upon, with, perhaps, a few miles into 
the interior from each of those points. "'' 

The outcome of all this correspondence was a survey upon the 
Stikine and the adoption of a provisional line upon that river in 
1878, with the proviso that it was not to afi'ect Ti-eatv rights.* 

"B. C. App., 235. 'B. C. App., 238. 

'> B. C. App., 191. '? B. C, App., 239. 

f B. C. App., 246. 



AKJUMENT OF THE UNITED STATES. 175 

The coiTespondence conclusively shows that down to its termina- 
tion both governments treated the question upon the assump- 
tion that these rivers were crossed by the boundary line, and 
that the boundary line must in any event be drawn around the 
heads of all of the bays and inlets. From 1825 down to the inception 
of this correspondence the question of running it in any other way 
had never been directly or indirectly raised, either between Russia 
and Great Britain or between Great Britain and the United States. 
The interpretation of the Treaty had been made evident l)y acts 
of possession, and jurisdiction upon the part of Russia and the United 
States, which were never challeno-ed by Great Britain, and by the 
affirmative declarations of all three of the governments through their 
official maps, and here, in negotiations extending throughout a period 
of more than four years bearing directly upon the question of fixing 
the boundary line, the minds of all parties were directed to a claim 
made by the United States which was wholly incompatible with the 
construction now sought to be put upon the Treaty by Great Brit- 
ain. There was no protest or denial as to this claim, but it was 
accepted as a matter too clear for doubt, and there can be no ques- 
tion but that if the United States Government had appropriated the 
money the boundary would have l)een marked at that time upon 
these rivers so as to forever exclude the present dispute. 

THE DALL-DAWSOX COSFEREXCE, ISSS. 

It is admitted in the British Case that: 
no further communications of importance with respect to this subject took place 
between the two governments until 1884, when the question entered on a new 
phase. « 

Before considering this "new phase," it will be instructive to 
review what had been done in the way of occupation by the United 
States government under the "old phase," from the close of the 
correspondence in March, 1878, by which the line established ])y 
the Hunter survey was provisionally adopted on the Stikine River, 
with the understanding that such " arrangement in regard to the 
Alaska Boundary shall not be held to affect the treaty rights of 
either party,"* down to the alleged " new phase," which was pre- 
sented for the tirst time in the Dawson letter of Feljruary 7, 1888, 

to Sir Charles Tupper. This covers a period of ten years during 

fc. — ^ . 

«B. C, 34. ?'B. C. App., 246. 



17() ARGUMENT OF THE UNITED STATES. 

which Oreat Britain was absolutely silent after the reiterated mutual 
understanding that the boundar}^ line crossed the Taku and Chilkat 
Rivers. 

Such occupation may be briefly summarized as follows: 

United States vessels every .year of that period and frequently 
repeatedly during the year went to the head of Lynn Canal and 
exercised authority over the natives as subjects of the United States, 
which jurisdiction was recognized by the Indians. 

The revenue service of the United States throughout that period 
was in efi^'ect over all of the coasts and waters in question. 

During the year 1887 Mr. Ogilvie, in charge of a survey for 
the Canadian government, entered upon the work at the head of 
Lynn Canal, only after having asked and received permission of 
the American government. 

In 1880 all foreign vessels were forbidden to unload at Chilkat, 
and this order was complied with without question. 

In 188'1 salmon canneries were established at Pyramid Harbor 
by United States citizens and on what was understood by them 
and United States officials to be United States territory. 

In 1880 and 1881 schools were established near the head of Lynn 
Canal b}^ United States citizens and under the auspices of the 
United States. 

In 1883 the British Government, in compliance with its request 
therefor, received the annual reports of the United States Coast 
and Geodetic Survey for the years 187-1 to 187!) inclusive,'^' which 
showed that the coasts and waters in question were treated as 
United States territory. 

In 1881 a civil government was established for Alaska, and 
Governors were appointed, who from that time, irrespective of the 
Dawson letter, exercised undisputed jurisdiction over all of the 
territory in question. 

The United States mineral laws were extended to that territor}^ 
in 1881, and in 1885 regulations were made covering all of the 
territory in question, and in the same year mineral locations were 
made on the east side of Berners Bay. 

In 1886 a location was made on Lynn Canal twelve miles north 
of Berners Ba}". ^ . 

«U. S. C. C. App., 88. 



ARGUMENT OF THE UNITED STATES. 177 

During- that period the United States courts exercised unques- 
tioned jurisdiction over all of that territory, and frequent arrests 
were made and Indians and others were prosecuted and imprisoned. 

In 1888 a salmon cannery was constructed at Pyramid Harbor 
by American citizens, who recoo-nized the United States g-overnment 
as having- jurisdiction over that territory. 

In that year 3,800 cases of salmon were canned b}" one company 
at Pyramid Harbor. 

A census was taken of the Indians in 1880. 

A postoffice was established at Haines in 1882. 

In 1885 a public school was established at Haines by the Depart- 
ment of the Interior. 

The United States, Canadian and British maps during this 
period declared that all of this territory l)elong-ed to the United 
States. 

Throughout this time there was never a protest against the occu- 
pation by the United States, and its jurisdiction was never ques- 
tioned. References for the facts stated in the foregoing summary 
have been given in previous parts of this argument. 

The Dall-Dawson conference may be said to have been initiated 
by the letter of Mr. Dall to Mr. Dawson, April 24, 1884, in which 
he said: 

The matter of the boundary should be stirred up. The language of the Treaty 
of 1825 is so indefinite that were the region included for any cause to becoQie 
suddenh^ of evident vahie, or if any serious international question were to arise 
regarding jurisdiction, there would be no means of settling it by the Treaty. 
There being no natural boundary and the continuous range of mountains parallel 
to the coast shown on Vancouver's charts, like a long caterpillar having no exist- 
ence as such, the United States would undoubtedly wish to fall back on the 
' line parallel to the windings of the coast and which shall never exceed the 
distance of ten marine leagues therefrom' of the Treaty. It would of course be 
impracticable to trace any such winding line over that 'sea of mountains.' I 
should think that the bottom of the nearest valley parallel to the coast might 
perhaps 1)e traced and its stream form a natural ))oundary; even then it would 
be difhcult to determine the line between one valley and the next. Before the 
question has attained any importance, it should lie referred to a committee of 
geographers, a survey should be made, and a new treaty should l)e made, stating 
determinable boundaries. " 

Mr. Dall then stated, what since has been incontestibly proved, 
that the rang-e of mountains shown upon Vancouver's map, which 

«B. C. App., 248. 



178 ARGUMENT OF THE UNITED STATES. 

wa.s the range in respect of which the negotiators proceeded in 
detining" the boiindaiy line, does not exist within ten marine 
leagues from the ocean. It is plain that in the absence of this 
range he undei'stood that the line was to be drawn parallel to the 
sinuosities of all of the coast, including the baj-s and inlets, 
and that this would be a matter of such difficulty as to make it 
advisable to make a new treaty calling for a line less difficult to 
trace over that sea of mountains. There was nothing in his 
suggestion that gave any countenance whatever to the present 
contention of Great Britain that the lino should be drawn so as to 
cut across the coast line. The difficulty which he foresaw was 
incident to drawing the line parallel to the sinuosities of all the 
coast. He recognized that the Treat}^ fixed such a line and did not 
propose to depart from it l)v putting a new interpretation upon 
the treat}', but by suggesting another treaty which would minimize 
these difficulties. His view of the line as fixed bv the treaty was 
absolutely in accord with that advanced by Mr. Fish in his letter 
of Januar}' 10, 1877, to Sir Edward Thornton in which he said: 

The absence of a line defined and marked on the surface of the earth as that 
of the Umit or boundary between two countries cannot confer upon either a 
jurisdiction l>eyond the point where such Hne should in fact be. That is the 
boundary which the ti-eaty makes the boundary; surveys make it certain and 
patent, but do not alter rights, or change rightful jurisdiction." 

So far as the record shows Mr. Dawson did not answer Mr. 
Dall. It is said in the British Case that "the idea put forward bj^ 
Mr. Dall was adopted by the Government of the United States." ^ 

That it was adopted bv Mr. Baj-ard in his letter of November 
20, 1885, to Mr. Phelps is true, but there is nothing whatever in 
that letter. that gives any countenance to the present British con- 
tention or that intimates in the least that any interpretation could 
be put upon the treaty by which, either looking to the mountains 
or the coast line or both, a line could be drawn in accordance Avith 
the intent of the Treat}' which would throw an}' part of the coast 
and waters now in question into British territory. On the con- 
trary, the opposite view unmistakably appears from Mr. Bayard's 
letter. '' 

He speaks of the treaty line as being "of uncertain, if not impos- 

«B. C. App., 198. ''B. C, 34. cB. C. App., 248-253. 



ARGUMENT OF THE UNITED STATES. 179 

sible, location for a great part of its length," but it is manifest that 
this uncertainty is not as to where the line theoretically should be 
drawn, but is on account of the difficulty of actually laying it down 
parallel to' the sinuosities of the coast oyer the sea of inaccessible 
mountains through which the investigations made subsequent to the 
treaty show it would haye to run. In his communication to Mr. 
Baj'ard, Mr. Dall shows that it was neyer intended in the inter- 
pretation of the Treaty, to depart from a line parallel to all the 
sinuosities of the coast. For this reason he says: 

The single continuous range being non-existent, if we attempt to decide on 
the 'summit' of the mountains -we are at once plunged into a sea of uncer- 
tainty. Shall we take the ridge of the hills nearest the beaches? This would 
give us in many places a mere strip of territory not more than three miles wide 
meandering in every direction. Shall we take the highest summit of the general 
mass of the coast ranges? Then we must determine the height of many thous- 
ands of scattered peaks, after which the question will arise between every pair 
of equal height and those nearest to them. Shall we skip this way or that with 
our zig-zag boundary, impossible to survey except at faljulous expense and half 
a century of labour? « 

He further says: 

In short, the "summit of the mountains" is whoUj' impracticable. We may 
then fall back on the line parallel with the windings of the coast. Let any one 
with a pair of drawing compasses having one leg, a pencil point, draw this line 
on the United States Coast Survey map of Alaska (Xo. 960 of 188-1). The result 
is sufficient to condemn it. Such a line could not be surveyed; it crosses itself 
in many places and indulges in myriads of knots and tangles. " 

A line indulging in such "myriads of knots and tangles" is not 
a line parallel to the general trend of the mainland coast, but a 
line drawn parallel to the sinuosities of all interior waters. Mr. 
Bayard understood it in this way, for, referring to the line traced 
on the Coast Surye}?^ map of Alaska, he said: 

The line traced upon the Coast Survey Map of Alaska No. 960, of which 
copies are sent to you herewith, is as evidently conjectural and theoretical as 
was the mountain summit line traced by Vancouver. It disregards the moun- 
tain topography of the country, and traces a line, on paper, about thirty miles 
distant from the general contour of the coast. The line is a winding one, with 
no salient land-marks or points of latitude and longitude to determine its posi- 
tion at any point. It is in fact such a line as is next to impossible to survey 
through a mountainous region, and its actual location there by a surveying 
commission would be nearh^ as much a matter of conjecture as tracing it on 
paper with a pair of dividers. « 

" B. C. App., 252. 



160 ARGUMENT OF THE UNITED STATES. 

This line is traced al)out thirty miles distant from the heads of the 
interior waters, and that is "the coast'"' that Mr. Bayard had in mind. 

In the same lettei- he further speaks of the seacoast being* scarcely 
less intricate than that about the Firth of Solway. 

]Mr. PheliJs. in communicating- the foregoing- considerations of Mr. 
Bayard to the Marquis of Salisbury, entertained exactly the same 
view of what coast was meant, and referring to Vancouver's map, he 
says that it "shows a range of mountains apparently continuous and 
sharply defined, running parallel with the coast, about ten marine 
leagues inland."" 

This coast was the coast of the interior bays and inlets, for those 
mountains are manifestly more than twenty marine leagues inland 
from parts of the coast line now insisted upon by Great Britain. 
His meaning, however, is made absolutely clear, for he says: , 

The coast proves upon survey to be so extremely irregular and indented, with 
such and so many projections and inlets, that it is not possible, except at immense 
expense of time and money, to run a line that shall be parallel with it, and if such 
a line should be surveyed, it would be so cmfused, irregular and inconsistent, that 
it would be impossible of practical recognition, and would differ most materially 
from the clear and substantially straight line contemplated in the Treaties. 

The result of the whole matter is that these treaties, which were intended and 
understood to establish a proper boundary, easy to observe and maintain, really 
give no boundary at all, so far as this portion of the territory is concerned.'' 

The sum of all this is that the negotiators thought there existed 
a clear I3" defined and substantialh' continuous coast range which 
extended around all of the coasts and that, relying upon this, they 
adopted it as a boundary line, that it appears that no such chain 
exists within ten marine leagues from the coast and that instead, the 
Avhole country is an irregular mass of mountain formations: that to 
undertake to select from this formation any series of mountains run- 
ning parallel to the coast would be a mere arbitrary selection without 
any good reason for differentiation, and that on account of the char- 
acter of the coimtry it would be impracticable to lay down the line so 
selected on account of the expense; and that if the mountains be dis- 
regarded altogether, the condition would not be bettered, for the 
expense of laying down a line in that country parallel to such an 
irregular and indented coast, would be almost prohibitory. There 
is nothing whatever in what he says that differs from the view 
expressed by Mr. Fish that the line is there and that the jurisdictions 

«B. C. App., 253. 6B. C. App., 254. 



ARGUMENT OF THE UNITED STATES. 181 

of the respective countries must divide on that line, no matter how 
ditiicult it ma^^ be of ascertainment, and there is nothing- whatever 
said by him to indicate that on account of this difficulty a new inter- 
pretation must be put upon the Treaty which will permit a line to be 
drawn perpendicular to instead of parallel to parts of this sinuous 
coast. What he said was in entire harmony with the expression 
of the Earl of Iddesleigh in his letter to Mr. Phelps of August 27, 
1886, in which, referring to a copy of the map of the Dominion of 
Canada, based upon surveys made by the Geological Corps 1842-1882, 
he said that: 

The Alaska boundary line shown therein is merely an indication of the occurrence 
of such a dividing line somewhere in that region. « 

This dividing line, as shown on the map, was substantially in accord- 
ance with the line as now claimed Ijy the United States. The expres- 
sion "somewhere in that region'"' did not mean somewhere in the 
region of where the line is now proposed to be located by the Govern- 
ment of Great Britain, but somewhere in the region around the heads 
of all the interior waters where the line was indicated on the map to 
be. The particular point where it was located on the ground had not 
been determined. The particular crossings of the rivers, the particu- 
lar peaks or mountain passes where it would go, would have to be fixed 
by surveys, but that it was a line running around all the coasts in the 
sense in which that word had down to that time been used without 
deviation is too clear for controversy". 

Lord Iddesleigh, while making a reservation as to the location of 
the line denoted by the map on account of the country not having l^een 
topographically surveyed, made no reservation whatever on the ques- 
tion of coast, or an}^ suggestion that if there should be an occurrence 
of mountains, their trend could l)e followed across the coasts of the 
ba3\s and inlets. Stress is laid upon the reservation made l\v Lord 
Iddesleigh in regard to this map, on the ground that it was the first 
occasion when such a map was handed by a representative of the 
British to a representative of the United States Government, and 
immediately after the problems presented b}" the topography had 
attracted attention. '^ 

While the other maps maj" not have been handed to a representative 
of the United States Government, they had been promulgated for more 

« B. C* App. , 255. ?* B. C. , 36. 



182 ARGUMENT OF THE UNITED STATES. 

than hulf a oentiuy by the British Government and were matters of 
common knowledge. While the problem presented b_y the topograph}^ 
then attracted attention, there were no problems tben or at any other 
time attracting attention as to where the bays and inlets were located, 
as to where their coasts were, and as to whether or not a line drawn 
parallel to the so called mainland coast and not more than ten marine 
leagues therefrom would throw a large portion of these waters and 
coasts in British territory. It needed no topographical surveys to 
suggest any such problems as this. Such problem, if inyolyed, 
depended alone upon the meaning attributed to the word coast, and 
all of the data necessary for raising any such problem were known 
just as well in 1825 as thej^ were in 1887. But Lord Iddesleigh sug- 
gested no problem of that character and made no reservation that 
would remotely suggest the existence of any such problem. 
It is stated in the British Case that in 1888 — 

During the currency of the fishery negotiations at Washington Dr. G. M. Dawson, 
as representing Her Majesty's Government, in an informal conference with Mr. 
Dall, representing the United States, put forward the contention that the territories 
surrounding the head of Lynn Canal w'ere British. 

The report of the conference between Dr. Dawson and Mr. Dall 
was subsequently laid before Congress ]\y President Cleveland in his 
message dated March 2, 1889. 

In reconunending to the president the publication of these docu- 
ments the Secretary of State observed: 

These documents are considered of value as bearing upon a subject of great inter- 
national importance and should be put in shape for public information." 

There is nothing to show that Dr. Dawson repi'esented Her Majesty's 
Government or that Mr. Dall represented the United States. Cer- 
tainly there is nothing to show that Dr. Dawson was authorized to put 
forward in behalf of Great Britain a claim so radical!}' contravening 
what had been before that uniformly manifested as the British inter- 
pretation of what the word "'coast'*' under the treaty meant. 

There is contemporar}" evidence of Mr. DalFs understanding of the 
attitudes occupied respectivel}" by Dr. Dawson and himself. He 
says in a letter to Mr. Baj^ard: 

I have the honor to report that the suggested informal conference between Dr. 
George M. Dawson, of Ottawa, Canada, and the writer has been held. Dr. Dawson 
and myself conferred on several occasions (February 4-11) and discussed matters 
connected with the Alaska boundary question freely and informally. 

«B. C, 94. 



ARGUMENT OF THE UNITED I^TATES. 183 

Tt was mutually announced and agreed that the meeting was entirely informal; 
that neither party had any delegated powers whatever, and that its object was 
simply the arrival at a consensus of opinion as to some reasonable and business-like 
way of settling upon a line satisfactory to both countries and the most practical 
means of demarcating the line if one was accepted/' 

It certainly was a most remarkable procedure, if Dr. Dawson did 
represent, as the British Case states, "Her Majesty's Grovernmeut,'' 
and if, as Lord Lansdowne says, the line drawn by him embodied the 
Canadian view, for a government to waive the usual channels of diplo- 
matic communication on matters of great import, and to entrust the 
advancement of a contention which was a departure from its settled 
course of conduct for a period of over sixty vears to be made l\v an 
unaccredited person to a person who understood that neither of the 
two "had any delegated powers whatever." 

It cannot be seriously contended that either government understood 
Dr. Dawson as advancing anything more than an exploitation of his 
and General Cameron's construction of the treaty, which was advanced 
by him, no doubt, as shown by Mr. Dall, to arrive at a result by which 
a conventional line through mutual concessions might be arranged.^ 

That Mr. Dawson did not advance his views as those of the British 
Government and bj^ authority of the British Government is shown by 
the letter or Sir Charles Tupper to Mr. Bayard of February 11, 1888, 
in which he says: 

In supplement of the Alaskan maps by Dr. Dawson, which I jiresented to you 
yesterday, I now l)eg your acceptance of the accompanying copy of Dr. Dawson's 
letter of the 7th instant, ex]>lanatory of his own views on the subject of the British- 
Alaskan Boundary. <^' 

So far from Dr. Dawson ever putting forward any such claim in 
behalf of the government, Mr. Dall shows that — 

Differences have been alludeil to, raised by General Cameron in the construction 
of the details of the Alaska Treaty which relate to the boundary,'' 
and that: 

"Waiving these fundamental differences in construction of the Treaty, Dr. Dawson 
suggested two alternative methods of obtaining a boundary line. " 

Dr. Dawson wrote a letter to Sir Charles Tupper setting forth the 
views of General Cameron.-^' Mr. Dall said, he most courteously fur- 
nished him with a copy of it, " in order that these views should 

a U. S. C. C. App., 94. d u. S. C. C. App., 85. 

&U. S.*C. C. App., 94 to 113. «U. S. C. C. App., 96. 

^U. S. C. C. App., 156. fB. C. App., 259-261. 



184 ARGUMENT OF THE UNITED STATES. 

clearly be put on record/' It is inanifestl}" an overstatement to say, 
as Lord Landsdowne has said in his letter of August 18, 1902, that 
they were accepted as embodying the Canadian view, or as is said in 
the British Case, p. 91, that the}^ were put forward 1)}^ Dr. Dawson 
as representing Her Majesty's Government, as "the contention that 
the territories surrounding the head of L^mn Canal were British." 

Dr. Dawson says that General Cameron's view as to what is 
intended by the expression " /r/ cdte^^ mav l>e substantialh^ adopted. 
It was a mere suggestion to Sir Charles Tupper. If the view had 
been adopted already and he had been authorized to put forward such 
a claim, he would not then have l)een making the suggestion, and 
would not have entered into a labored argument for the purpose of 
convincing Sir Charles Tupper that it could be sustained. 

This letter was written on the fourth da}^ of the conference. He 
certainly appears to have had no such authority at that time. 

The best evidence that he did not represent the British Government 
is that that govermuent never acted on his suggestion, and never 
followed it up. 

Dr. Dawson in his report makes no pretense of having put forward 
any such claim. In his letter to Sir Charles Tupper of February 11, 
1888, he states that he had several informal conferences with Mr. Dall, 
with the purpose of arriving, if possible, at some conventional line which might 
be recommended as advantageous to both comitries." 

He saj's: 

I found, however, that INIr. Dall was not disposed to regard with favor any sugges- 
tion which would involve the cession of any part of the coast line of Alaska. ^ 

He evidently understood here by coast that part of the coast bor- 
dering on the inlets, and that Great Britian could get it only Jy cession. 

This letter is his report of the interview, and there is not a word in 
it which indicates that he put forward any such claim in behalf of the 
British Government, as is now made.'' 

Dr. Dawson's views as to what the word coast in the treaty meant 
had undergone a radical change from the time he wrote his letter, on 
February the Tth, in which he undertook to show that the coast could 
not possi])ly have applied to the border of the interior waters, and 
February 11th, where, with absolute distinctness, referring to such 
border, he speaks of it as "any part of the coast line of Alaska." 

«B. C. A pp., 261-262. '-B. C. App., 261-263. 

SB. C. App., 262. 



ARGUMENT OF THE UNITED STATES. 185 

But this view of February 11th is in entire accord with the one held 
by him in 1887 and ]81»8. In a narrative of the Yukon Territory, 
describing- an exploration made in 1887, which narrative wa.s pub- 
lished in London in 1898, he uses the following- expressions: 
and from its headwaters we crossed the mountains by the Chilkoot pass and reached 
the coast at the head of Lynn Canal on the 20th of September." 

It is somewhat less in the latitude of the Chilkoot pass, but may lie assumed to 
occupy a border of the mainland about fifty miles in width alons; the whole of this 
part of iJie const.b 

* * * interfered with a lucrative and usurious trade which the Chilkoot and 
Chilkat Indians of Lynn Canal, on the coaM, had long l)een accustomed to carry on 
with these people, c * * * 

It leaves fJu- coast at the mouth of the Skagway River live miles south of the head 
of Taiya Inlet and runs parallel to Chilkoot pass at no great distance from it. The 
distance from //(f corrsi to the summit is stated as seventeen miles. * * * 

The passes connecting t]ie const with the interior country from the heads of Lynn 
Canal to the upper waters of the Lewes, were always jealously guarded by the Chil- 
kat and Chilkoot Indians of the coast/' 

That the coast theory of Mr. Dawson had not, up to February, 1892, 
received any acceptation, even in Canada, is evidenced by a speech made 
on that date by Mr. Scott in the Canadian Senate, in which he said: 

There was no dispute as to the boundary of Alaska. . . . The line was 
defined, but not marked out. There is no doubt a dispute as to where it goes. 
. . . It is purely a question of survey. The terms of the treaty are not disputed." 
I think as a matter of compromise at the time it was agreed between the two coun- 
tries that we should mark off the line where it crossed the Stikine and other rivers, 
but it was going to cost too much entirely to run out this particular 1)oundary. 

He concluded as follows: 

The expensive part is, of course, the fringe of land that runs along the coast up to 
the particular jiart where the meridian runs, because it is entirely a matter of cost. 
1 have never heard of any dispute as to the interpretation to be given to the treaty, 
because the treaty is plain and speaks for itself. I have the terms of it under my 
hand here this moment, if it is desirable to read them. I do not suppose it is; it 
cannot be disputed. ' 

It would have been impossible for him to have spoken thus if Can- 
ada had advanced, or sustained, the contention that the word "coast" 
in the treaty, meant anything but what the word usually imported, 
and what it was shown to mean, ])y all of the official maps of all three 
of the governments directly concerned in the boundary, which had 



«U. S. C. C. App., 258. <? U. S. C. C. App., 261. 

'>U. f^ C. C. App., 259. ^U. S. C. C. App., 167, 168. 

cU. S. C. C. App., 260. 



186 ARflUMENT OF THE UNITED STATES. 

been issued up to that time. Mr. Scott could not have spoken unad- 
visedl3^ He Avas Commissioner of Crown Lands 1872-73, was a Sen- 
ator in 1873, was Secretaiy of State 1873-1878, and was leader of the 
opposition in the Senate 1879-!:>6." 

ATTENTIOX CALLED IN 1SS7 TO SCHWATKA'S JiECONNAISSANCE OF 1SS3. 

In 1883 Lieutenant Schwatka, at the direction of General Miles, 
on account of the reports of difficulties between the whites and 
Indians in Alaska, made a militar}^ reconnaissance for the purpose 
of ascertaining- the number, nature and disposition of all the natives 
living in that territor}^, the tribal subdivisions, the sections inhab- 
ited by them, their modes of life, how they were armed, and, in tine, 
everA^thing- practicable of the character of the country in reference 
to military purposes. He was charged with no duty whatever hav- 
ing the remotest reference to the interpretation of the treaty or the 
location of the boundary under it. '' 

In his report he stated that: 

The fact that the country beyond Perrier Pass in the Kotusk mountains lies 
in British territory (as shown by our astronomical observations and other geograph- 
ical determinations, when brought back and worked out), lessens the interest of 
this trail beyond the pass to the military authorities of our government. ^ 

This report having been communicated to the Colonial Foreign 
Office, Lord Salisbury, in a letter to Sir L. West of August 20, 1887, 
calls attention to the fact that Lieutenant Schwatka's report showed 
that he had extended his reconnaissance into British territory to Fort 
Selkirk, which is situated on the Yukon River far to the north of the 
head of Lynn Canal and some distance from the boundary" line as 
always claimed by the United States. He also says: 

It will also be seen on referring to pages 20 and 47 of the Report, that Lieut. 
Schwatka has indicated two points, to wit: Perrier' s Pass and 140th degree west 
longitude, which he has determined as defining the international boundary. 

Her Majesty's government, as you are aware, have agreed in principle to take 
part in a preliminary investigation of the Alaska Boundary Question, but they are 
not prepared to admit that the points referred to by Lieut. Schwatka in any way fix 
where the lines should be drawn. 

He adds: 

Her Majesty's government have no desire at the present moment to raise any 
discussion in regard to the question of the boundary l)etween Alaska and British 

« U. S. C. C. App., 167. cu. S. C. C. App., 89. 

6U. S. C. C. App., 89-90. 



ARGUMENT OF THE UNITED STATES. 187 

Coluin):)ia, Init in order that it may not be prejudiced hereafter by abs^enee of remark 
on their part on tlie points aUndetl to above, I reque8t tliat you will, in a friendly 
manner, call Mr. Bayard's attention to the observations contained in this despatch/' 

On September 14, 1S87, Sir L. West communicated to Mr. Ba^'ard a 
memorandmii containing the above extract, but in calling attention to 
it he only made observation upon the fact that Schwatka 

traversed British territory for a considerable (hstance without any intiinati(m having 
been given to the British authorities of liis intention of so doing. 

He concluded by saying: 

I may add, however, that Her Majesty's government do not attach any import- 
ance to this fact, an<l that no doubt had tlieir acquiescence Iteen asked, it would not 
have been refused. '' 

He made no reference to what Lord Salisbur}- had said about not 
being prepared to admit that the points referred to b^' Lieutenant 
Schwatka in any way fixed where the line should be drawn. Cer- 
tainly there is not the remotest suggestion that Great Britain then 
held that the line should be drawn in any essential feature ditferent 
from the way in which it had been drawn up to that time. There was 
absoluteh^ nothing whatevej- involved in this att'air which hinted at the 
coast line theory afterwards adopted by Great Britain. 

The British Case dignities this comnuinication by entitling it 
"Canada's Protest."'' If it be admitted that the communication of 
Sir L. West to Mr. Bayard should have such a formidable title, it 
must on the other hand he admitted that such protest can in no way 
be tortured into a representation of the interpretation now sought to 
be put upon the treaty in regard to coasts and interior w^aters. If- it 
had any such purpose, it was so artfull}' veiled as to make it entirely 
undiscernible, and consequently of no signiiicance as a notice to the 
Government of the United States. 

WHITE PAS.^ TRAIL, ISSS. 

On Jvuie 19, 1888, it was communicated to Sir J. Macdonald, then 
Prime Minister of Canada, that it was believed that: 

certain persons are about to receive a charter from the Alaskan authorities to con- 
struct a trail from Lynn Canal by way of White Pass to the interior of Alaska. If 
our view of the case is correct, the entire route of this trail, as well as the trail by 
the Chilkoot Pass, is in Canadian territory. In view of the w'ell-based contention on 

«B. C. App., 256. (B. C, 94. 

&B. C. App., 257. 

1571—03 13 



IbO ARGFMENT OF THE UNITED STATES. 

our i)art, that the heads of tlie larger inlet.« whieh penetrate that portion of Alaska 
>vhieh consists of the coast line from Monnt St. Klias to Portland Channel, and more 
particularly the head of Lynn Canal, are within our territory, it would appear to 
be important to protest against the granting of any rights by the United States 
or Alaskan government at the heads of these inlets." 

This coiiuiitinifation was from A. M. Burgess, Deputy Minister of 
the Interior, of Canada. This appears to have been transmitted l)y 
8ir J. Macdonald to Sir Charles Tupper, l)ut for some reason not 
stated, the communication of Sir J. Macdonald is omitted from the 
correspondence printed by the British (Tovernment." 

Sir Charles Tapper transmitted it August 1, isys, to the Colonial 
Office and added a memorandum prepared l)y Major General L). R. 
Cameron. This memorandum distinctly advanced the theory now con- 
tended for by the British Government. He prefaced it by a demon- 
stration of its necessity by saying: 

By way of Lynn Canal, of which tlie entrance is about 135° west longitude, 58° 20^ 
north latitude, is at present the only practical route to gold mines being worked on 
tril)utaries of the Pelly Kiver, some in British and some in United States territory." 

It states that: 

From the ocean entrance to Lynn Canal the head of boat navigation up the Chil- 
koot is about 80 miles; from this point to Perrier Pass is somewhat in excess of 30 
miles or 10 marine leagues. 

Lynn Canal has waterways of less than six miles in breadth at no great distance 
from its entrance. 

It is contended on the Canadian side that the ten marine leagues given as the 
maximum breadth of United States coast territory in the second subsection of Article 
IV, Russo-British Convention of 1825, may not l)e measured from any point within 
an inlet not exceeding six miles in breadth, and that, consequently, it is not, under 
any circumstances, possible that the international boundary can 1)e anywhere so far 
inland as Perrier Pass. 

He submits that "the United States' contention should be emphat- 
ically protested ag-ainst."'' 

Sir Charles Tupper, in concluding- his letter of August 1, 1888. to 
the Colonial Office, after referring to this memorandum says: 

I entirely concur in the great importance of protesting against the United States 
contention. " 

Dr. Dawson had advanced this theory in his letter to Sir Charles 
Tupper of February 7, 1888. ' 

(' B. C. App., 264. '■ B. C. App., 259-261. 

''B. C. App., 265. 



ARGUMENT OF THE UNITED STATES. 189 

Thus it w;is agaiii called to Sir Charle.s"' attention by the memoran- 
dum of Major General Cameron, which he communicated to the 
Colonial Office, re-enforced by his entire concurrence in the great 
importance of protestino- against the United States' contention that 
under the treaty it owned all of the interior waters of Lynn Canal and 
Taku Inlet. 

Thus the question was for the second time squarely presented to 
the British (xovernmont, sixty-three years after its original interpre- 
tation, to which it had consistently adhered. It had an opportunity, 
and was urged by the Canadian authorities to take a position in line 
with the views adv^anced b}' Dr. Dawson and General Cameron, and 
what course was pursued^ Lord Salisbury, on August 1, 1888, trans- 
mitted to Sir L. U'est a copy of all these papers, styling them, 
"•Relative to a rumor that a charter is about to be granted by the 
Alaskan authorities of the United States for certain privileges in that 
part of Alaska which is claimed ))y this country.'' 

He concludes: 

I have to request that you will inforni Mr. Bajard that this report has reached 
Her Majesty's Government and that it is presumed to be unfounded as the territory 
in question is i>art of Her ^Majesty's dominion. » 

At the same time he transmitted a copy of this conmiunication to 

the authorities in Canada, clearly acquainting them wnth his failure 

to make an}^ such protest as that suggested by General Cameron 

and Sir Charles Tupper in regard to the sovereignty over Lynn 

• Canal. 

Sir L. West, on September 10. 1888, addressed Mr. Bayard as 
follows: 

I have the honor to inform you that the ^Nlartpiess of Sahsbury has requested me 
to bring to your notice a rumor which has reached Her Majesty's Government that 
a charter is about to be granted by the authorities of Alaska for certain privileges in 
a part of that country which is claimed by Great Britain. 

Her Majesty's Government presume that this rumor is unfounded, as the territory 
in question is part of Her ilajesty's dominions.'' 

He did not leave the Marquis of Salisburv in ignorance of what he 
had done, but transmitted to him a copy of the note, as well as a copy 
of Mr. Bayard's reply thereto. '^ 

^Ir. Bayard said: 

The rumor to which you refer is, as stated 1)y you, certainly vague and indefinite 
and has not ci.nrte to the notice of this Department, which is wholly without infor- 

«B. G. App., 265. ''B. C. App., 266. 



190 ARGUMENT OF THE UNITED STATES. 

mation in rej^ard to tlie granting of .such a i-harter ay you mention or to the hjcaht}'' 
of the territorj' to which it is said to apply. " 

Sir L. West did not enclose to Mr. Bayard the memorandum pre- 
pared b}' General Cameron. The suggestion of General Cameron, 
though endorsed by Sir Charles Tapper, was summarily dismissed. 

In view of the note of Sir L. West to Mr. 15ayard and the reply of 
Mr. Bayard, the statement in the British Case cannot but be regarded 
as extravagant wherein it says: 

Again, in 1888, the Canadian Government forwarded a further protest to Her 
Majesty's Government for communication to the United States Government against 
a rumored attempt of the United States to e^jercise jurisdiction at the White Pass, 
claiming it as British territory, ff 

unless the passage be taken to mean that the protest was simply 
effective as against Her Majesty's Government. 

It certainly was no protest to the United States Government, as it 
was never communicated. The fact that such protest was made "to 
Her Majesty's Government for comuuinication to the United States 
Government," coupled with the further fact that it was not communi- 
cated is strong if not conclusive evidence that at that time the Gov- 
ernment of Great Britain distinctly repudiated the suggestion. 

SO-CALLED PROTEST OE 1S9L 

In the meantime the jurisdiction of the United States over all of 
said territory was luiinterrupted and unquestioned, and nothing fur- 
ther appears to have transpired upon which anything in the nature of 
a protest is sought to be based until June 5, 1891, which was within a 
few days of three years after the memorandum prepared by General 
Cameron was communicated to Sir John Macdonald. In the mean- 
time a Collector of Customs was appointed for Chilkat and a customs 
office was established there in 1S90. The United States court was 
exercising complete jurisdiction over every part of that territory. 
No one living there during that period ever questioned or ever heard 
questioned the sovereignty of the United States. 

In 1889 the value of the canning improvements in and about Pyramid 
Harbor aggregated $100,000, and there were canned annually al)out 
55,000 cases of salmon caught in the Chilkat River. 

In 1887 a settlement l)v American missionaries was made at Haines 
Mission and about twenty -tive Americans lived there the 3^ ear through. 

«B. C. App., 266. ^B. C.,94. 



ARGUMENT OF THE UNITED STATES. 191 

In 1800 F. H. Poindexter was a United States Ju.stice of the Peace 
at IVramid Harbor and exercised jurisdiction in that vicinit}'. 

In 188S-9 the town of Skagway was settled. 

In 1888 Governor Swineford reported that there were thirteen 
schools in operation in Alaska, one of them being- at Chilkat. 

In 1890 there was a census taken of Alaskan Indians, which included 
those living at Berneis Baj', at Chilkat, Chilkoot, Klukwan, and 
Pyramid Harbor. 

On June 5, 1891, Sir Julian Pauncefote addressed a communication 
to Mr, Blaine, stating that the Governor General of Canada had 
brouolit under the notice of Her Majesty's Government a passage in 
the last published report of the United States Coast and Geodetic 
Survey as follows: 

By recent congregsional enactments, a preliminary survey of the frontier- line 
between Alaska and British Columbia in accordance with plans or projects approved 
by the Secretary of State, has been placed in charge of this bureau. 

Such a preliminary survey, involving the determination of a numl)er of points in 
geographical 2:)osition and their complete marking by permanent monuments, will 
have to be carried from Cape Muzon through the Portland Canal to the 50th degree of 
north latitude; thence northwesterly, following as near as practicable the general 
trend of the coasi, at a distance of abovi S5 miles from it, to the 141st degree of west 
longitude, and thence due north to the Arctic Ocean, a total distance of about 1400 
miles. 

He concludes: 

The Dominion Government has expressed a desire that the United States (jovern- 
ment may be reminded that the question of the boundary at this point is, at the 
present time, the subject of some difference of opinion and of considerable corre- 
spondence, and that the actual boundary line can only be properly determined by an 
international conunission. ^' 

He does not say what points he means, but inasmuch as the words 
"through Portland Canal'" and also the words "about 35 miles from 
it"' are italicized, it might be said that he intended to question that 
portion of the line through Portland Canal, or whether the line 
should run thirty-live miles from the coast. There is not the slight- 
est suggestion that would enable even so astute a man as Mr. Blaine 
was, to surmise that au}^ such theory was hinted at as that now 
advanced by Great Britain. The fact of there being "considerable 
correspondence'"' is mentioned. No correspondence between the two 

governments had ever made any such suggestion. The communica- 

. A 1 : . , 

«B. C. App., 268. 



192 AKGUMENT OF THE UNITED STATES. 

tioii of Sir Juliun Pauncefote i.s entirely valueless for the ])urpose of' 
basinjj- any claim upon it that the present theory of the British Case 
was at that time made known to the Government of the United States. 
And yet, in the British Case, this is styled the Bi-itish protest of 
June, 1891. '' 

rilK COXVKSTIOS OF .iriA' 2-2, 1S92. 

After setting out Art. I. of the Convention of Julv '2'2, 181)2, the 
British Case proceeds to comment upon its effect as follows: 

, It is to be observed that the C'onvention of the 22ii(l of .Tnly, 1S92, lut8 reference 
to an existing boundary, and that it provided for the ascertainment of the facts and 
data necessary to its permanent delimitation in accordance with the spirit and 
intent of the existing Treaties. In view of contentions wliich have since lieen put 
forward in the course of this controversy, that the claim of the United States 
receives support from effect having before this date been given to their interpreta- 
tion of the Treaty in 1825 by maps pul)lished or acts done with the ac(iuiescenee 
of (jreat Britain, it is important to observe that l)y this Convention the rights of 
the two Governments concerned are by agreement referred back to the Treaties. 
The facts and data to be ascertained were to be so ascertained l)y a joint surve^v. 
Previous cartograjjhy or acts of settlement were not embraced in the work author- 
ized by the Convention, nor did the Commissioners, who properly confined them- 
selves to the Convention under which they were appointed, report upon such 
cartography or acts of settlement, if any existed. ^ 

Certainly there was "an existing boundary," but not an ascertained 
boundary. It w^as, as is insisted for the United States, by the lan- 
guage of the Treaty, as interpreted ])v the parties, ascertained to the 
extent of sweeping around the heads of \mys and inlets, but the width 
of this lislere had not been ascertained, and it was desired to get data 
for that purpose. 

The astounding passage in the part just (juoted is that which puts 
forward the claim that, by entering into the Convention of 18112, the 
United States abandoned all of its rights that might be predicated 
upon the interpretation put upon the Treaty of 1825 by '"maps pub- 
lished or acts done with the accpiiescence of Great Britain" and rele- 
gated the whole matter to an interpretation <lc nvro of the treaties 
themselves without regard to what had transpired for a period of 67 
3'ears. This proposition w'ould be sufficiently untena])le on its face, 
if it were not in direct conffict with the Treaty under which the case 
is pending, which expressly provides that each party may present to 

«B. C, 98. J-B. C, 40. 



ARGUMENT OF THE UNITED STATES. 193 

the tribunal all pertinent evidence, including maps, and that the 
tribunal shall take into consideration any action of the several 
o-overnnients so far as the same tends to show the understanding- 
of the parties in respect of the limits of their several territorial 
jurisdictions. 

The Treaty of July 22, 1892, provides for a survey •"with a view 
to the ascertainment of the facts and data necessary to the permanent 
delimitation of said boundary line in accordance with the .spirit and 
intent of the existing treaties in regard to it between Great Britain 
and Russia and between the United States and Russia.''" This did 
not efface the interpretation put upon the Treaty by the parties, but 
only provided for data to carry tiie i)roper interpretation into eti'ect. 

The Earl of Rosebery, in his instructions to Mr. King, the British 
Conmiissioner, directed him to effect a joint survey ""with a view to 
the permanent delimitation of the boundary line in accordance with 
the spirit and intention of the Treaties in regard to it."'' 

The Treaty did not authorize the commissioners to estal)lish any 
line, but only to survey -*with a view to the ascertainment of the 
facts and data necessary" therefor.'^' 

The High Contracting Parties agreed as soon as practicable after 
report or reports of the Commissioners ''to consider and estal)lish the 
boundary line in question." 

THE liXsTRrcrroxs of dr. mexdexiiall. ISO.l. 

Much comfort seems to be derived in the British Case from the 
opinion as to what was "'coast," which is supposed to l)e disclosed 
by the instructions given b}" Dr. Mendenhall in 1S93 to his assistants 
and surveA'oi'S who were to make the sur\ey contemplated by the 
Treaty of 1892. 

It is true that in his letter of March 1(5, 1893, to Mr. Tittmann, 
who was charged with the duty of surveying the Stikine River, he 
directed him to continue "to a point on the Stikine River distant not 
less than thirty nautical miles from the coast of the mainland in a 
direction at right angles to its general trend."'' 

He also said: 

A topograjjhical survey or t^ketch will also be carried on over tiie same route, but 
all possible additional sreographical information will be collected, particularly as to 

":^. C. App., 269. cB. C. App., 274. 

bB. C. A pp., 272. 



194 ARGUMENT OF THE UNITED STATES. 

the location of mountain peaks and the existence or non-existence of a ranrje of 
mountains parallel to the coast. Should a range of mountains 1)e found to exist, it 
is of the first importance that its distance from the coast and its general trend should 
be determined, unless such distance should considerably exceed the specified thirty 
nautical miles/' 

He did not explain what he meant by "mainland coast'' or "coast."' 
In his instructions to Mr. McGrath March 18, 181»3, who was to 
make the surve}" of Taku Inlet and river, he directed him to survey to 
a point "on the inlet or river distant not less than thirty nautical 
miles from the coast of the mainland in a direction at right angles to 
its general trend.''* This, on its face, seems to indicate that in 
surveying thirty miles from the coast, the distance might he reached 
while yet on the inlet. 

The conclusion is stated in the British Case that: "it is evident tiiat 
Dr. Mendenhall did not consider the shore line of an inlet as being- 
part of the 'coast.'"'' That may be true as of that time, and, if true, 
it may be said in reply: 

1. Dr. Mendenhall was not charged with the duty of construing the 
treaty. His authorit}^ was confined to the practical administration of 
the Department of Coast and Geodetic Survey, and was purely minis- 
terial. At most, it is to have only such weight as his mere opinion 
would be entitled to. 

2. It does not appear that his mind was particularly addressed to 
any conflict of views as to what the coast line was; and, further, it 
does not appear that he had any acquaintance with anything l^earing 
on the question except the text of the treaty itself. 

But it is not necessarv that either of these be urged. It is sufficient 
to say that if such was his opinion in 1893, he changed it after he had 
a year of acquaintance with the subject. On March 21. 18!)4, in his 
instructions to Mr. Pratt, he said: 

On the receipt of these instructions you will jjlease arrange to proceed by the 
Steamer Haxsler, which will furnish transportation to and from the field for your 
party and outfit, and which will sail from Seattle about April 27th to I^ynn Canal, 
where you will execute the triangulation and topographical reconnaissance of the 
Chilkat and Taiya Inlets to the ten marine league limit. You will also establish an 
astronomical station on the west side of Chilkat Inlet and connect it by triangulation 
with the old station on Pyramid Island.'/ 

Here he very clearly indicates that the ten league limit was not to 
lie measured from anv coast near the mouth of Lvnn Canal, but from 



aB. C. App., 274. <^B. C, 74. 

'^ B. C. App., 276. ''IT. S. C. C. App., 276. 



ARGUMENT OB' THE UNITED STATES. 195 

the foast at its head. In his instructions to Mr. McGrath in this same 
month he said: 

The Steamer I'atterso)/ will call for you at Yakutat at such time as you may have 
agreed ui3on with her commanding oftioer, and will then transport yourself and partj' 
to the head of Lynn Canal, where you will render such assistance to the parties there 
at work as may be necessary to ensure the completion of that survey/' 

In April, l^'Jl, he directed ]Mr. Flemer: 

"* '^ * to proceed to Alaska and make a topographical reconnaissance of the 
coimtry to the northward and eastward of Taiya Inlet and River to the ten marine 
league limit." 

He also said to him: 

The party of Assistant Pratt will he engaged in the survey of the Chilkat Inlet 
and River to the boundai'v, and his camps may be used by you as a base of opera- 
tions when practicable.'^ 

He gave .similar instructions to Mr. Hitter in April, 1894. 
The British Case sa^'s: 

It is to be observed that Dr. Mendenhall and his able assistants were engaged 
imder the Convention of 1892 in ascertaining "the facts and data necessary to the 
permanent delimitation of the boundary line in accordance with the spirit and intent 
of the existing Treaties." Copies of Articles III and IV of the Treaty of 1825 were 
endjodied in the instructions above cited. Yet the principle followed by them 
(which is the same as that applied on the Stikine River by Mr. Hunter in 1877), is 
inconsistent with the view .mice contended for by the United States. For if the line 
is properly drawn parallel to the general trend of the coast when inlets breaking 
that general trend terminate short of the line so drawn, it must also be properly so 
drawn when the inlets are long enough to be cut by it. The effect of the occurrence 
of the mouth of an inlet upon the general trend of the coast cannot depend ujjon its 
interior length. ^^ 

In the light of a/I of the iiidruetiona^ and what vmH done under them, 
'"the principle followed by them" is not "inconsistent with the view 
since contended for by the United States." If they are to be appealed 
to by Great Britain as authority, then its cause, as to the Fifth Ques- 
tion, is surrendered, for they clearly included tlie whole of Lynn 
Canal, the longest of all the inlets, within the coast, and within United 
States territory. The concurrent action of the commissioners of the 
two governments is an intei'pretation of the meaning of the woi'd coast 
as used in the treaty. 

In pursuance of this undertaking to survey "the principal water 

courses which traverse the coast strip" during the year 1894, "the 

% 

«U. S. C. C. App., 280. '•B. C, 74-75. 

6U. S. C. C. App., 281. 



19(> argump:nt of the united states. 

followino- parties were phu-ed in the field on l)eli:ilt* of the United 
States Commission: Mr. Pratt, on the Chilkat Inlet and River and on 
Chilkoot and Taiya Inlets and Taiya River: Mr. Dickens, on Knik 
River and Chilkat Inlet: Mr. Flemer, on Chilkoot and Taiya Inlets; 
Mr. Ritter, on Chilkat Inlet and River; Mr. Klotz, around Bradtield 
Canal; Mr. Ogilvie, on the east side of Lynn Canal; ]\Ir. MciVrthiir. 
at the north end of Lynn Canal; Mr. Robertson accompanied Mr. Pratt 
and partv as attache for the British Commissionei'.'' " 

Thus the British Conmiissioner not only agreed to these assiumnents 
in pursuance of the treaty to survey "these water courses which 
traverse the coast strip," but sent a representative to co-operate in it. 
The result of all these surveys accompanied their report." 

DYEA AXD SKA(n]-A V AXI) ALLEGED PUOTEsT. 

The British Case, referring- to the Klondike rush of 1S97, says: 

■Many stojjped tit Dyea and Skagway, whih^ otliers iiushed on over the jias^se^ to 
the gold lields. By this movement of travel Dyea and Skagway came into existence. '' 

As has ])een shown, an American established a trading- place at Dyea 
in 1SS(), which was never abandoned, and in lSSS-1) Captain ^^'m. 
Moore located the townsite of Skag-way, and his son settled there. 
For many years prior to I81»T the jurisdiction of the United States 
courts had been exercised where those towns were subsequently estab- 
lished. The revenue laws of the United States had been extended 
to and exercised over all of that territory from 1868, and this juris- 
diction had never been questioned. In 1880 all foreign vessels were 
forbidden to unload at Chilkat. 

It i^: said in the British Case, referring- to the revenue laws, that: 

These regnlations were put in force, notwithstanding that Canada's claim to the 
territories at the head of Lynn Canal was at the time well known to the United 
States Government. <' 

This is a gratuitous assertion. There is no proof to sustain it. 
Canada never put forward any such claim to the United States. The 
claim w^as tirst made in 181*8 b}' Great Britain before the Joint High 
Commission. 

It is said on page 95 that: 

if the Canadian Government had instructed British vessels to disregard these regu- 
lations, there would have been grave danger of a serious collision. 

'<B. C. App., 284. 'B.C., 94. 

^B. C, 9:i 



ARGUMENT OF THE UNITED STATES. 197 

There would undoul)te(lly have l)eeu a collision, just as certainly as 
if they had been in.structed to disregard the regulations at the Port ot 
New York. The head of Lynn Canal had for thirty years been under 
the un([uestioned jurisdiction of the United States. 

It is said that instead of resorting- to violence the Canadian Govern- 
ment "at the same time reserving her rights as to the ultimate deter- 
mination of the boundary" on July 22, 1897, inquired whether or not 
Canadian goods could pass from Juneau to the Yukon frontier without 
payment of customs duties if owners paid for United States officers 
accompanying the goods. ^' There was no such reservation as to the 
boundary when this re(iuest was made. 

In replv it was asked: " Would it facilitate matters to make Dyea 
a sul)-port of entry T' '^ 

The reply w^as: "It would facilitate matters if Dyea made a sub- 
port of entry pending settlement of boundary question.''* 

This w^as from a commissioner of customs. Doubtless he meant 
that this would be a convenience until the exact boundary line in the 
interior should be determined. His government had never intimated 
that it claimed any part of Lynn Canal, and no such interpretation 
should l)e put on his telegram. The British Case expands the inci- 
dent immensely In^ saying that the Commissioner requested that "if 
this arrangement w^ere agreed to'' the Treasury Department should 
issue instructions to permit British steamers from Canadian ports 
to land and receive passengers and goods at Dyea." The impli- 
cation is that by the condition ''if the arrangement,"' etc., the 
sovereignty over Dyea was to be treated as undeteiniined pending- 
settlement of boundary question. The Commissioner said nothing 
about "if this arrangement" were agreed to. He only said, "if 
agreed to," manifestly meaning, if the United States Government 
would agree to make Dyea a sub-port of entry. The reply of 
Assistant Secretary Hawell was simply that Dyea had been made a 
sub-port of entry and that the collector had been advised. 

It is inconceivable that either party had in mind any reservation 
as to Dyea, and certainly neither of them had any authority in the 
premises. 

On this slender basis the British Case builds an imposing super- 
structure and discusses it as a grave diplomatic treatment of the 

«B. ^., 9.^. &B. C. App., 289. 



198 ARaUMENT OF THE UNITED STATES. 

^ boundary question. It says that the objective point referred to in 
the first Canadian communication is the ""Yukon frontier,'"' no spe- 
cial locality being mentioned. 

A communication intended to have such fruitful results as those 
now contended for should have been so framed as to g-i\'e a person of 
ordinary intellioence some conception of its purpose. 

It is said that Canada, "in accepting this proposition, expressl}' 
provided that her acceptance was pending settlement of boundar}- 
cjuestion." The despatch of July 23rd cannot be inflated into any 
such a compact. There is not a word in it about acceptance, and 
there is no proviso about it. The straight meaning is that if the 
United States will agree to make it a subport of entry, it would 
facilitate matters until the boundary should be settled, and then, of 
course, the customs would be collected there. There was no ques- 
tion of agreement or compact. There was no reason for the United 
States to agree except to acconuuodate Canada. There was nothing 
but a favor in the transaction. It was not a' l)argain. There was 
nothing reciprocal. It made no difference to the United States 
whether it suited the Commissioner, except in so far as it wanted 
to be generous. A mere matter of grace should not be tortured 
into a formal compact affecting Dyea's relation to the boundary. 

This is followed l)y a declaration quite in keeping. The Case 
says: 

A few months later the Canadian Government in the early part of the j-ear 1898 
formally protested to the Imperial Government that the l^niteil States had estab- 
lished a sub-port of customs at Dyea in teri-itory whieh they claimed was rightfully 
British." 

Why did the Canadian Government protest against what it on 
the same page said had l)een done only under a formal agreement 
in which Canada ''expressly provided that her acceptance was pend- 
ing settlement of boundary question" ? This, shows the unsoundness 
of the contention as to the agreement, Avhich was quite apparent 
without it. 

But this protest, like the other alleged protests set uj) in the Case, 
never got any further than the British Government, which mani- 
festly at that time did not sanction Canada's claim that the inter- 
pretation of the Treaty of such long standing, and acted on so noto- 
riously by both governments, should be repudiated and a new one 

"B.C., 96. 



ARGUMENT OF THE UNITED STATES. 199 

a.sserted on which territor}- could be claimed which had been in the 
undisputed possession of the United States for over thirty 3'ears. 

The exact date in 18t>8 when this protest was made to Great Britain 
b}' Canada is not given, nor is the form of it shown. Taken with 
the evidence in the record, the fact of such protest being made serves 
only to emphasize its insigniticance, l)oth in Canada and Great Britain, , 
for it was not only not communicated to the United States or followed 
up l)v Canada, but was entirely out of accord with the views then held 
in Canada and b}* the representative of Great Britain at Washington. 

On Februar}' 11, 1898, during a debate in tlie Canadian House of 
Commons, the Minister of the Interior, the Honorable Clifford Sifton, 
the question as to the ownership of the latid about the head of Lynn 
Canal being under discussion, said: 

Difficulties also arose in the White Pass, behind the village of Skagway, and at 
Chilkat Pass behind Dyea. I believe our contention is that Skagway and Dyea are 
really in Canadian territory, but as the United States have had undisputed posses- 
sion of them for some time past, we are precluded from attempting to take possession 
of that territory. 

Sir Charles Hibbert Tupper: May I be excused for saying that I do not think the 
Honorable Minister meant to say "undisputed possession." 

The Minister of the Interior: There have been no protests made. It must be 
taken as undisputed when there has been no protest made against the occupation of 
that territory by the United States. 

Sir Charles Hibbert Tcpper: A claim, I suppose, was made and adhered to? 

The Minister of the Interior: There is nothing in the records to show that any 
protest has been made — an unfortunate thing for us, but it is a fact. I do not know 
that that particularly affects the discussion, because there has been no real discussion 
about that particular point. We have taken the position that there can be nodou])t 
raised as to the Canadian territory beginning at the summit; we have taken the 
position that the claim of Canada to occupy the territory inside of the summit from 
the boundary at White Pass and Chilkat Pass is not deniable, and we cannot admit it 
is debatable, and we have instructed our officers to establish posts as near the boundary 
as physical conditions will permit. 

Mr. Foster: How far from the water line? 

The Minister of the Interior: About fifteen miles from tide water. An accurate 
survey has not been made in the White Pass, but the distance is about the same, 
fifteen miles. Therefore, so far as possible under the present conditions, the idea of 
the honorable gentleman has been carried out, and our officei's have been instructed 
to locate themselves as nearly as possible to the summit on the northeastern side and 
to take the summit of the White Pass and Chilkat Pass as the boundary line, without 
making any admission as to the right of the United States to the territory on the sea- 
ward side." ^ 

«U. S. C. C. App., 169. 



200 ARGUMENT OF THE UNITED STATES. 

On February 16, 1898, the followin'o- occurred: 

3Ir. Prior: Before the Orders of the Day are failed, I wish to ask the Right Hon- 
orable First Minister whether his attention has been called to certain paragraphs 
that have appeared in the press, both in the United States and in Canada, to the 
effect that the l-nited States Government is about to send two companies of troops 
to be permanently stationed at Dyea and Skagway, at the liead of the Lynn Canal. 
That is, as you know, in disputed territory. It is a highway to the Yukon country, 
and the reason given in these papers is, that there are a large numT)er of disorderly 
characters assemliU'd thereat present, and that troops are required to prevent any 
riotous proceedings taking place. I also wish to ask the right honorable gentleman 
whether his (xovernment has seen tit to let the United States (Tovernment know that 
they have no objei'tion to these troops l)eing sent there, ])ut that such permission 
must not be considered as an admission on the part of Canada that our claim to that 
territory has been withdrawn. We saw, in times paet, how the sending of troops to 
San Juan affected the argument before the arbitration, and I, for one, would not 
like to see the same thing occur again with regard to Dyea and Skagway. 

The Prime Minister (Sir Wilfrid Laurier): The (TOvernment has not been 
informed of the intention to which my hon. friend has just referreil. The Govern- 
ment did not know it was the intention of the American Government to send their 
troops to Dyea and Skagway. My hon. friend is aware that, although this is dis- 
l)uted territory, it has l)een in the possession of tlie United States ever since they 
accpiired this country from the Russian Government in 1867, aud, so far as my 
information goes, I am not aware that any protest has ever been raised by any Gov- 
ernment against the t)Ccupation of Dyea and Skagway by the United States. It is 
only in recent years that the attention of the public has been drawn to it. I may 
say to my hon. friend, that the importance of having a delimitation or settlement of 
the l)oundary between Canada and the United States in that region is at this moment 
engaging our attention.''' 

On March T, 1S1>8, the Prime Minister said: 

We had either to take the route by the Lynn Canal and Dyea, or the route by 
the Stikine River. The advantages of the one had to be set against the disadvan- 
tages of the other, and rice rer-w. The advantages of the route. l)y the Lynn Canal 
were that it was shorter and more direct than the route by the Stikine River. But 
if we had adopted the route by the Lynn C-anal, that is to .say, had chosen to build 
a railway from Dyea by the Chilkat Pass up to the waters of the Yukon, we would 
have to place the ocean terminus of the railway upon what is now American terri- 
tory. I agree with the statement which has been made on the floor of this house, 
<m more than one occasion, that Dyea, if the treaty is correctly interpreted, is in 
Canadian territory. It ought to be; but the fact is, as my hon. friends know verj'^ 
well, even those who do n(jt belong to the legal i)rofession, that possession is nine 
points of the law; and even though by the letter of the treaty Dyea is in Canadian 
territory, the fact remains that from time immemorial Dyea was in possession of the 
Russians, and in 1867 it passed into the hands of the Americans, and it has l)een 
held in their hands ever since. 

<'U. S. C. C. A pp., 170. 



ARGUMENT OF THE UNITED STATES. 201 

Now, I will not recriininate here; this is not the time or the occasion for doing so, 
but so far as I am aware no protest has ever been entered against the o('cupation of 
Dyea by the American authoiities; and when the American authorities are in pos- 
session of that strip of teriitury on the sea which has Dyea as its harbour, succeeding 
the possession of the Kussians from time immemorial, it l)ecomes manifest to every- 
body that at this moment we cannot di.-pute their possession, and that before their 
possession can l)e disputed, the (|uestion must be determined by a settlement of the 
question involveil in the treaty." 

On Febvuarv !^3, 181KS. Sir .lulian Pauncefote, in a coninmnication 
to the Secretary of State, made on the direction of the Marquis of 
Saliisbury, for the purpose of having a settlement of the boundar}' 
line, said: 

The great trartic which is now attracte<l to the valley of the Yukon in the Xortli- 
west Territory liy the recent discovery of gold in that region finds its way therefrom 
the coast, principally through certain passes at the head of the Lynn Canal, and it 
has become more important than ever for jurisdictional purposes that the boundary, 
especially in that particular locality, should be ascertained and defined. 

Her Majesty's Government, therefore, propose that the determination of the coast 
line of the boundary south of Mount St. EHas should at once be referred to three 
commissioners (who should he jurists of high standing), one to be appointed by each 
Ciovernment, and a third by an Independent Power. It is suggested further that the 
Commission should proceed at once to fix the frontier at the head of the iidets through 
which the traffic for the Yukon valley enters, continuing subseipiently with the 
remaining strip or line of coast. '' 

In this he conceded that the line would run somewhere in the localitj' 
of the passes at the head of Lynn Canal, and that the frontier would 
be somew^here about the head of the inlets at the head of Lynn Canal. 

ACQUIESCENCE. 

It is respectfully submitted that it has been conclusively shown that 
for over seventy years before the present claim of Great Britain was 
preferred, Russia and the United States have exercised jurisdiction over 
the "waters and coasts in dispute; that throughout that period Great 
Britain never sought in any way to assert any sovereignt^v over au}^ 
part of them; and that by her ollicial maps she concuri'ed in the claims 
made notoriously and continuously l^v the official maps of Russia and 
the United States that tlie boundary line in dispute ran from the head 
of Portland Canal around the heads of all the bays and inlets. 

The case of Indiana v. Kentucky grew out of a conflict as to the 

«4I. S. C. C. App., 171-172. f>B. C. App., 291. 



202 ARGUMENT (,>F THE UNITED STATPZS. 

proper construction of the deed of cession made on the !20th day of 
December, 1783 by the State of Virginia to the United States. Tiie 
State of Indiana was carved out of the territory embraced in that deed 
of cession. Subsequently, by the consent of Virg-inia, Kentucky 
became an independ(Mit State. The controversy was between Indiana 
and Kentucky as to the boundary line between them. Mr. Justice 
Field, who delivered the unanimous opinion of the court, said: 

It was over .seventy years after Indiana became a .State before this suit was com- 
menced, and during all this period she never asserted any claim by legal proceedings 
to the tract in question. She states in her bill that all the time .since her admission 
Kentucky has claimed the Green River Island to be within her limits and has asserted 
and exercised jnrisdi^.tion over it, and thus excluded Indiana therelYom, in defiance of 
her authority and contrary to her rights. Why then did she dela_\- to assert liy proper 
proceedings her claim to the premises? On the day she l)ecanie a State her right to 
Green River Island, if she ever had any, was as perfect and complete as it ever 
could be. On that day, according to the allegations of her bill of complaint, Ken- 
tucky was claiming and exercising, and has done so ever since, the rights of sover- 
eignty, both as to soil and jurisdiction, over the land. On that day, and for many 
years afterwards, as justly and forcibly observed by counsel, there were i)erhaps 
scores of living witnesses whose te.stimon}- would have settled, to the exclusion of a 
reasonabte doubt, the pivotal fact ui)on which the rights of the two States now 
hinge, and yet she waited for over seventy years before asserting any claim whatever 
to the island, and during all those years she never exercised or attempted to exer- 
cise a single right of sovereignty or ownership over its soil. It is not shown, as he 
ad<ls, that an ofiii-er of hers executed any process, civil or criminal, within it, or tliat 
a citizen residing upon it was a voter at her polls, or a juror in her courts, or that a 
deed to any of its lands is to be found on her records, or that any taxes were col- 
lected from residents upon it for her revenues. 

This long acquiescence in the exercise by Kentucky of dominion and jurisdiction 
over the island is more potential than the recollections of all the witnesses produced 
on either side. Such acquiescence in the assertion of authority by the State of Ken- 
tucky, such omission to take any steps to assert her present claijn by the State of 
Indiana, can only be regarded as a recognition of the right of Kentucky too plain to 
be overcome, except by the clearest and most unquestioned pi'oof. It is a print-iple 
of public law universally recognized, that long acquiescence in the possession of terri- 
tory and in the exercise of dominion and sovereignty over it, is conclusive of the 
nation's title and rightful authority. (i'.i6 V. S. Reports, 509, 510.) 

See also the proceedino-s of the Commission under Art. IV of the 
Treaty of Ghent, relating- to the title to the islands, in Pas.sama([Uoddy 
Bay, wherein the Agent of Great Britain concludes his argument as 
follows: 

A total silence continued to be observeil by the Government of the Uiiited States 
with r&spect to all these Islands now in question, excepting the three in that behalf 



AKC4UMENT OF THE UNITED STATES. 203 

before named until the year 1807 notwithstanding the public notoriety of the facts 
of British settlement, and of the exercise of British jurisdiction over all the Islands 
as well Cirand Manan as those in Passamaquoildy Bay with the alxjve exception, 
and notwithstanding these facts were in evidence l^efore the Connnissioners of the 
two Nations under the oth Article of the Treaty of 1794 as befnre mentioned. 

In the year 1807 a claim is for the first time preferred by the United States to the 
Island of Grand ^lanan in the negotiations of the unratified supplemental conven- 
tion of limits of that year in pursuance of the instructions in the letter from the 
Secretarj' of State of the United States under date of the 15th of May 1806 which 
letter has been already under consideration in the second part of this argument. 
No claim however as was there observed was even then in any manner suggested on 
their part to any of the Islands in PassanuKjuoddy Bay exce[)ting the three Islands 
above mentioned. 

At length however by the 4th Article of the Treaty under which this Honorable 
Board is constituted not only the Island of Grand Manan Vjut all the Islands in the 
Bay of Passamaquoddy are claimed as belonging to the United States in conformity 
with the true Intent of the Treaty of 1783 and the Agent of the United States under 
this Commission has accordingly in his memorial preferred to this Board at their 
Session at St. Andrews in the month of Septendjer last claimed all these Islands and 
each and erenj of tlwm as belonging to the L'nited States under that Treaty. 

The simple uncontroverted fact, that all these Islands now in question, upon the 
publication of the treaty of 1783 were in the possession of His Majesty, and with the 
excep>tion of the three Islands above mentioned continued in his possession, with 
the tacit consent and acquiescence not only of the (jovernment of the United States 
but that of the State of Massachusetts always vigilant and tenacious of all her rights 
and particularly jealous of all British encroachments upon her territory in this 
quarter must to any unprejudiced mind most strongly evince the sense of both 
Nations at that time with regard to the right to these Islands under that Treaty, and 
can be considered in no other light than as a mutual, cotemporary exposition of the 
true intent of the Treaty in that regard, in which not even a doubt is raised as to 
His Majesty's right to any one of the Islands now in (juestion excepting the three in 
that regard so often before mentioned, and the claim even to these having been 
made under an erroneous impression with regard to the mouth of the River St. Croix. 

To an unprejudiced mind also the further uncontroverted fact, that under this 
mutual understanding of the Treaty, the United States as well as the State of Massa- 
chusetts in the words of the late Agent of the United States before quoted "remained 
silent spectators" ol the settlements and improvements made by His Majesty's Sub- 
jects upon these Islands with the above exception, during a period of more than 
twenty-three years with regard to one of them, and of more than thirty years with 
regard to all the others, will justly furnish an argument, that the United States have 
no claim at this day to any of those Islands. (P. 129 of Memorial of British Agent, 
dated June 11, 1817. MSS. United States, duplicate copy in State Department at 
Washington. ) 

The right of Great Britain to the territory in ((uestioii Avas as per- 
fect and complete as it ever could be, from the moment the Treaty 
45T4— 03 U 



204 ARGUMENT OF THE UNITED STATES. 

of 1825 with ilu,s«ia wa.s executed. If from thut time down to 1898 
she failed to assert the rig-ht ncnv set up, and acquiesced in the exer- 
cise of dominion and jurisdiction upon the ])art of Eussia and the 
United States, such acquiescence shoukl he conchisive as to herunder- 
standino- of the Treaty of 1825. 



ALASKAX BOUNDARY TRIBUNAL. 



APPENDIX TO ARGUMENT OF UNITED STATES. 



THE LINE, SHOWN ON MAP NO. 37 BRITISH CASE, AND 
ALLEGED TO BE THE LINE OF DEMARCATION, AS 
DEFINED BY THE TREATY. 



Where and hou' dors tJie BritisJi Jtnehegin f 

The British line does not continue up Portland Channel to the 56th 
degree of parallel north latitude, but takes a ditferent direction from 
the head of this channel. 

It runs, almost directl}' v.estward, from the head of Portland Chan- 
nel, tift}'-seven miles to a point on the 56th degree of latitude. 

The treaty says, "la dite ligne remontera au Nord", until it reaches 
the 56th degree. 

The British line does not go northwardl}' until it reaches the 56th 
degree. 

The Faden. Vancouver, Arrowsmith, and Russian maps all showed 
the crest of the mountains on the 56th parallel near the head of Port- 
land Channel. It is not possible to lay down the British line on an}- 
one of those maps and say that it crosses the 56th degree of latitude 
at the point where the crest of the mountains begins. 

When the British line strikes the 56th parallel on Faden's map, it is 
distant from the nearest point of the chain of mountains on that map 
thirty -eight miles. Faden's map was before the negotiators, and Mr. 
George Canning said in his letter to Sir Charles Bagot that it was the 
most relial)le map of them all. 

The point of departure of the British line at the head of Portland 
Channel is distant from the nearest chain of mountains on Vancouver's 
map (No. 2 British Atlas) six miles. The point where the line strikes 
the parallel of 56 degrees is distant from the nearest chain of moun- 
tains, on that map, twenty-live miles. 

Take Vancouver's general map, No. 1 British Atlas. The point 
where the line leaves the head of Portland Channel is distant from the 
nearest continuous chain of mountains twenty-two miles. The point 
where it strikes the 56th parallel is distant from the nearest chain of 
mountains twentv-iive miles. 

This general map of Vancouver seems to show, to a small extent, an 
exterior range of mountains for short distances. l)ut this is not the 
continuous range of mountains, as defined in the treaty. This range 
is what might Ik' termed the interior range of mountains on this map. 
and also the interior range on Map No. 2. It has a very large break at 
the head of Bradtield Canal of fifteen miles. The so-called exterior 
range, really gnlv spurs, as shown on Vancouver's map No. 1, runs only 
from Observatorv Inlet ai'ound Portland Channel and to Behm Canal, 



4 APPENDIX TO ARGUMENT OB^ UNITED STATES. 

and theret'oiv could not po8.siI)ly have been the continuous chain of 
mountains which the treaty contemplates as running- from the 56th 
parallel to the 141st meridian. 

Take the Russian map. The point at which the line departs from 
the head of Portland Channel is distant from the nearest point of the 
chain of mountains on this map al)out seven miles. The point where 
it strikes the 56th parallel is distant from the nearest chain of moun- 
tains twenty-live miles. 

Take Pinkerton\s Arrowsmith ma]) (No. 8 of the U. S. Atlas). The 
point of the departure of the line from the head of Portland Channel 
is distant from the nearest chain of mountains fourteen miles. The 
point where it strikes the 56th parallel is distant fi'om the nearest 
chain of mountains nineteen miles. 

This section of the line runs across the Behm Canal, where it inter- 
sects Burroughs Ba}-, and gives a water line across that canal of three 
and one-half miles. It then cuts across the upper portion of an arm 
of Behm C-anal, and cuts Bell Island in such a manner as to leave the 
northeasterly portion of it and a part of the mainland coast to Great 
Britain. 

The treat}^ said that, after the line had ascended Portland Chamiel 
and run to the north to the 56th degree of latitude, it was to follow 
the crest of the mountains, but this line crosses transversely moun- 
tains forming the water-shed between Behm Canal and Portland 
Channel, which has peaks of over live thousand feet in height. It also 
crosses transversely the mountains which form the divide between the 
Chickamin River and the Leduc River, also the moiuitain mass which 
forms the divide between the Leduc and Pnuk Rivers. None of these 
formations are parallel to the so-called mainland coast. 

The British explanation for this part of the line will l)e found on 
page 62 of the British Case, as follows: 

From the 56th parallel the line is to follow the crest of the mountains parallel to 
the coast, being by subsequent provisions those lyinji within not more than thirty 
miles of the ocean. The natural construction of the language seems to contemplate 
a point on the channel where the parallel and the coast mountains meet, 1)ut Port- 
land Canal does not fulfill these conditions. 

(Ibid., p. 62.) 

How is it possible to say that the treaty means that the 56th degree 
of parallel and the coast mountains were to meet on Portland Channel? 
Vancouver's map showed that the head of Portland Channel was four- 
teen miles from the 56th parallel. Faden's map showed that the head 
of Portland Channel was twelve miles from the 56th parallel. The 
Russian map showed that the head of Portland Channel was seventeen 
miles froiu the 56th parallel. Arrowsmith \s map showed that the head 
of Portland Channel was eighteen miles from the 56th parallel. All 
of these maps showed the parallel and the supposed chain of moun- 
tains to be coincident at a point northwardly from the head of Port- 
land Channel. How is it possible, then, to say that the negotiator 
intended that there was to be a common point of the chain of moun- 
tains of the 56th parallel and of Portland Channels 

The British Case suggests that the word "elle'" mav possi))ly refer 
to Portland Channel. This would bring about a most extraordinary 
result, for if ''elle" does refer to the Channel, and not to the line, the 
result is that the Channel must reach the 56th degree of latitude. It 
did not reach it, and all of the maps showed this. 



APPENDIX TO ARGUMENT OF UNITED STATES. 5 

Tlu> British Case states that the general result is that the description, 

does not lit the facts, and it is necessary to project lines not specifically designated 
in the treaty, and to take courses easterly, northerly and westwardly along three 
sides of a great square in order to bring Portland Canal into the line of demarcation. 
(B. C, p. 62) 

This is a o-ood reason why the negotiators never intended the line 
to V)e drawn from the head of Portland Channel in the way it has l)een 
drawn in the British Case. The Treaty expressly required Portland 
Channel to l)e brouo-ht into the line of demarcation, hut did not require 
any such departure as is made to reach the .56th deg'ree. It is such 
departure and not the bringing- in of Portland Channel that carries the 
line along three sides of a great square. The great square is a crea- 
tion of the British Case. 

There are other mountains in the immediate vicinity and on the o(M\\ 
parallel to the east of the point where the British line crosses it which 
answer the re(iuirements of the Treaty equally as well as that selected 
in the British Case for the point of departure on the parallel. 

The point of departure of the British line is not on the summit of 
the mountains. It crosses the parallel on a saddle half a mile south 
of peak '' ttoTU." There are higher places on the 56th parallel east of 
this as, for instance, the mountain mass which lies ))etween the Leduc 
river and Burrough's Bay and those between the Chickamin River and 
the head of Portland Channel which are as much parts of mountains 
parallel to the general or mainland coast as are the formations selected 
by Great Britain. The contention, however, of the United States is 
that none of the mountains within ten marine leagues of the coast 
answer the requirements of the Treaty. 

From the point of departure the line runs half a mile to peak '" 4(>T0." 
From this peak it runs three and one-fourth miles to another peak 
'•SSOO," thence for five miles to a peak ''3700/' and thence in four 
miles it strikes the shore of Bradtield Canal, which is five hundred feet 
deep. 

In this entire distance the line skips from mountain peak to moun- 
tain peak, and there is no detinite backbone or crest running from its 
beginning until it strikes Bradtield Canal. 

The line crosses Bradtield Canal from a mountain peak on the south 
to a mountain peak on the north. There is nothing to indicate that 
this peak on the north is any part of a mountain formation which 
embraces this peak on the south. There are numerous mountains in 
the vicinity. Xo topographer can give a good reason why peak "S-IOO-' 
was selected on the north side of Bradtield Canal as a better summit 
than an}^ one of three which are in the immediate vicinit}'. All are 
between three thousand and three thousand four hundred feet high. 
Peak. "'S-tOO''. is one end of a mountain mass which trends in a gen- 
eral direction for eight or nine miles northerly, never descends l)elow 
27.50 feet, and whose axis goes through live difierent peaks to peak 
'••i6()(V. -This mountain mass trends northeasterly two miles to peak 
"'6200 "\ a total distance of about eleven miles where the surveyed 
area ceases. The British line, instead of following this indicated 
ridge from mountain '"^lOO" up to mountain '•6200 '\ actually leaves 
that ridge to the east and goes westward. Why, when an elongated 
mass did look something like a portion of a ridge, did the British line 
merely take ©ne end of that ridge, and then leave it, and refuse to 
follow it farther^ 



6 APPENDIX TO ARGUMENT OF UNITED STATES. 

Contiimino- from peak ''84(M)'\ which has ))een .shown to bo on the 
slope of an elon_o"ated mountain mass, the line runs four miles to peak 
"4384"; then three and one-half miles to peak ^ 851^0 '•: and in two 
and one-half miles more it descends into a small inlet which it crosses, 
antl then in three and one-half miles it rises to peak "4500 to 4750 "\ 
Tiiencc in seven miles it runs to peak "'3780*". Between this point and 
a peak distant four miles, marked "3830". it drops about three thou- 
sand feet, into a deep ravine, and then ascends again to peak "8830'''. 

Between thQ peaks. "3400" and "3830", the mountain mass rises 
eastwardly to higher sunmiits, and the line, instead of attempting to 
reach these higher sunmiits, takes lower summits between the peaks 
described. 

From peak "3880". it runs to a i)oint on the north side of the 
Stikine river, crossing that river less than six miles northeast of Point 
Rothsay to peak "4488". 

(It may be well here to note that, including the British line under 
discussion, four diti'erent places have l)een contended for as the proper 
ones where the line of demarcation crossing the Stikine River should 
be drawn, and all of them were based on the theory that the}' were 
following the crest of mountains parallel to the coast.) 

1. Chief Justice Begbie's line was eastwai'illv of tlie present line, and midway the 
line of 1878. 

2. The line drawn l)y 'Sir. Hunter under the instruction of the Surveyor General 
of Canada, whicli is the line of 1878, shown on the map, is to the eastward of the 
present line, fourteen miles. 

3. The line drawn on the map presented to the Joint High Commission in 1898 is 
drawn to the westward of tlie present British line. 

4. The line now jirojjosed by (jreat Britain. 

It is three miles to the next jjeak marked "5700". and then four 
miles to Le Conte Bay, here less than one mile wide. In another mile 
the line reaches peak "■ 3600". From this peak it is two and one-half 
miles to peak "5355", and as much more to peak "5860", which the 
line reaches after crossing the ice-lilled valley about three thousand 
feet below these peaks. About one-half a mile to the eastward from 
peak "5860" lies another peak 6800 feet, and on the same mountain 
mass. This is entirely ignored. 

From peak "5860", it is two miles to peak "5268"; but the line 
descends between these peaks to a slope of a glacier coming from the 
cast, which it crosses. 

The distance from "5268" to "4725" is a mile and a half. Most of 
this distance is across an inter\ening glacier sloping down from the 
higher summits marked "6980" and "7180", about live miles to the 
eastward. These are so much higher than the peaks selected for the 
British line that it is difficult to understand how it is possible for any- 
bod}' to conceive that such a line does follow, as the treaty requires, 
the crest of the mountains. 

From peak "4725", the line changes its course at an angle of about 
one hundred and six degrees, and runs to peak "4812", distant four 
miles, crossing the slope of Patterson glacier three thousand feet or so 
below these peaks. From peak "4812" the line runs to "4881", after 
crossing a deep I'avine three thousand feet l)elow the latter peak, and 
less than two miles from it. 

This i)eak forms the western summit of a moinitain mass represented 
on the British Connuission Maps, as running east from this peak for 
about nine miles in the ueneral direction of Devil's Thumb, which is 



APPENDIX TO ARGUMENT OF UNITED STATES. / 

over nine thousand feet high, and the i)eak two miles southeast from 
Devil's Thumb over seven thousand feet hioh. This mountain mass 
can be traeed on the British Commission Maps from peak •"-tSSl" to 
peak ■•5(»o(»'\ distant one and a half miles; thence live and one-half 
miles to peak '" 5500''; thence two and one-half miles to peak " (iOOO''. 

At peak '"4881'''', the British line cuts across the end of this moun- 
tain mass running" east and west, and in contravention of the terms of 
the treaty, because, according- to the treaty, the line must follow the 
crest of the mountains. Here this line cuts the mountain transversely. 

From peak '"'4881''' the line runs towards peak "4050'', crossing 
Thomas Bay two and one-half miles from the lirst named point, where 
the width of Thomas Bav is one and one-fourth miles. 

Peak ''4050" is near the southern end of a mounttiin mass which 
trends in a northeasterly direction for seventeen miles paralleling the 
glacier which joins the Dawe.s and Baird glacier. This mountain mass 
is further defined as follows: — From peak "4050" four miles to peak 
'''45(H)""; thence two miles to peak ''5533''''; thence two miles to peak 
"G70o''; thence one and one-half miles to peak ''6040"; thence live 
miles to latitude 57-^ 20' and longitude 132^ 45'. But the British line 
runs transversely across this mountain mass, and then in three miles 
reaches peak "40T2'". In another three miles it descends to a])Out sea 
level and crosses a valley draining into Farragut Bay. 

In another mile and a half it ascends to peak "4500 to 4750"; thence 
in four miles to peak "4052". In three miles it goes down to sea 
level, crosses Port Houghton, which is here about a mile wide, and 
three miles further reaches peak "4275". Three miles west of peak 
"4275" is peak "5160". That is a peak eight or nine hundred feet 
higher than "4275". These peaks together form part of a mountain 
mass which lies on the north side of Port Houghton and which sweeps 
around towards the head of Endicott Arm. 

Thus, it will ])e noticed, that there are two peaks forming a part of 
the mountain mass, and that the British have chosen for the line the 
lower of these two peaks. 

The British line, disregarding the higher peak, contimies to the 
north four miles to a point one and one-half luiles east of peak "4700". 
and crosses the slope of this peak at an altitude of between thirty-tive 
hundred and thirty-seven hundred and tifty feet. From this slope it 
runs four miles to peak "3210", having midway that distance descended 
to about sea level. From here in one mile it reaches peak " 3250 to peak 
3500", and from thence proceeds three miles to peak "3750 to 4000". 
From this point it descends two miles to Windham Bay, where it 
crosses half a mile of water. In two miles more it reaches peak " 4200"". 
a peak on the peninsula between Windham Bay and Holkham Bay. 

From "42;MJ"", in three miles, it reaches "311<>". In about four 
miles more it descends to sea level at the mouth of Holkham Bay, 
(Avhich is here live miles wide), crossing Harljor Island which lies in 
the middle of the entrance. On the north of the entrance it strikes 
the shore of the narrow peninsula formed by Holkham Bay and Port 
tSnettisham. For nine miles and a half it runs along this peninsula 
before it reaches peak "3100", and from this descends in two miles 
and a half to the sea shore of Port Snettisham. For one and a half 
miles it runs across the water and ascends again in two miles to peak 
"3748"". Fpom that peak it runs to peak "3588". but between the 
two again descends to sea level crossing Limestone Inlet, a little arm 
of the sea, near its head. 



8 APPENDIX TO ARGUMENT OF UNITED STATP:S. 

From Thomas Buy to Port Snettishjim, it run.s ulon^- mountains, 
which lie ahiiost under the shadow of mountains to the eastward, whieh 
are half again as high. From peak ''4881 "" below Thomas Bay to peak 
"3588", above Limestone Inlet, it descends to sea level, or nearly so, 
eioht times, and the total number of peaks used between these two is 
but thirteen. Between Holkliam Bay and peak "3588" the British 
line is nowhere as nmch as two miles from the sea, as represented l)y 
the (treat Stephens Passage. 

Starting at peak '"'3588'", the line runs six miles toward peak 
"3475"', which it reaches after going down to sea level within about 
two miles of the last named peak. Descending about three thousand 
feet in the next mile, it ascends to an altitude of a little over three 
thousand feet, and crosses Taku Inlet to "3441", distant tive miles, 
two miles of this distance being along the surface of the sea. 

AVithout regarding the higlier mountains to the northward, the line 
there runs from peak "3441" to '-oSOO" one mile, then one and one- 
half miles to "4175". Then making an angle of 118' it runs one and 
one-half miles to peak "3630"; thence for the same distance to peak 
"4250 to 4500", and thence two and one-half miles to peak "4071". 

From peak "4071" it runs six miles to peak "3500" to "3750"'. 
Two miles before reaching the last named slope, it descends about three 
thousand feet into the valley of a glacial stream to nearly sea level. 
From peak "3500" to "3750" it descends in two miles, about three 
thousand feet, to the foot of the Mendenhall Glacier, which it crosses 
in two miles more. Then it ascends to peak '"4322" in another mile. 

Disregarding the higher peaks which form the water-shed between 
Taku Inlet and Lynn Canal, the line runs from peak "4322" to " 4750", 
distant two and one-half miles, and thence to peak ""5655" in two 
miles. Here it descends about two thousand' feet to the Herbert 
Glacier, which it crosses and from which it ascends to peak " tjOlO " 
distant three and one-half miles. Thence it proceeds one and one-half 
miles to peak "5124", and thence three miles to peak "5500-5750", 
after having crossed the slopes of Eagle Glacier. From here it pro- 
ceeds three miles to peak "5799", where it turns at an angle of 122 
degrees running two miles to "5790". 

At peak ''5790" it again changes its course, at about an angle of 126 
degrees, running thi'ee and one-half miles to "5986". thenct^ one mile 
to "5210", where it bends abruptly about (95 degrees) and reaches the 
head of Berners Bay within two miles, crossing the waters of that bay 
for three miles. Thence it proceeds one and one-half miles across a 
little peninsula above Point St. Mary, and then crosses Lynn Canal, 
which is here about live and one-half miles wide, ascending to peak 
"3452", which is south of Endicott River. 

From this peak it runs to peak "4050" distant live miles, thence to 
"4760" distant four miles, thence to "4200". tive miles, thence to 
"4140", six miles, and thence two and one-half miles to the sea level 
on the shore of Glacier Bay. In crossing the peninsula between 
Glacier Bay and Lynn Canal, it descends to nearly sea level in cross- 
ing the stream flowing into Hudson Bay Inlet and before reaching 
"4140" it descends again to nearly sea level. 

In order to reach the shores of Glacier Bay. it necessarily leaves the 
mountains on the eastern shore of Lynn Canal, crosses the surface of 
Berners Bay and Lynn Canal and then crosses transversly the moun- 
tain masses lying between Lynn Canal and (Jlacier Bay, two of which 



APPENDIX TO ARGUMENT OF UNITED STATES. 9 

can be traced to Mt. Wright "0;-;()O*\ which is al)out eleven and one- 
half miles north of where the line crosses the loOth meridian in 
(xlacier Bay. 

What is especially noticeable and ol)iectionable in this line from 
Berners Bay to Glacier Bay is: 

I. 

^Yhereas the line up to this point has l)een running- northwest, or as 
Mr. King said, the ruling N. N. W., it makes at the head of Berners 
Bay, almost a right angle, and runs west by south, a complete change 
from the northwesterly direction so far followed. 

Why Is this complete change made^ There is no chain of moun- 
tains here, no crest of the mountains running to the one side of Lynn 
Canal and reaching up on the other side of Lynn Canal to Invite a line 
to l)e drawn from one side to the other. There Is no Indication of any 
chain of mountains from the head of Berners Bay to Glacier Bay. 
Then why should the British have directly changed the direction of 
the line and drawn It South l)y West across Lynn Canal, unless, 
Indeed, It was so as to give to the British the head of Lynn Canal ? 

IL 

Between Lynn Canal and Glacier Bay. there are mountain masses 
which have a cei-taln parallelism to Lynn Canal, running Korth and 
South; the British line. Instead of running along these mountain 
masses Noi-th and South, cuts then transversel}', dlrectlv contrary to 
the words of the Treaty, which said *■' tlie line was to foUoin the crest of 
the mounta'nisy 

From the shore of Glacier Bay, two and one-half miles west of peak 
"'41-1:0", the line follows the sea across Glacier Ba}' for about nine 
miles, rises for three and one-half miles to "3030", and then In one 
and one-half miles drops Into a valley- to about sea level, keeping at 
sea level for about two and one-half miles. \\\ the next two miles it 
crosses transversely a small mountain mass, descends again Into a 
low valley a mile wide, and then ascends to peak "3700** In three- 
quarters of a mile. 

From peak '' 3700"' to "3()50'' It crosses the sloping end of a glacier, 
13'lng midway between these peaks, which are four miles apart, and pro- 
ceeds thence two and one-half miles to '" 4275 ". The greater part of this 
distance Is across Brady Glacier In about latitude 58^ 20', which slopes 
from about latitude 58° 43' at the North point to about 58° 21' at the 
South, Avhere It discharges Into the ocean at the head of Taylor Bay. 

Here again the line crosses transversely two glaciers, Brady Glacier 
and a branch of the same, without seeking at all to run along the top 
of the glacier. On the contrary. It runs right through the middle of 
the glacier, from East to West. All these glaciers which this line 
crosses, and there are a number of them, necessarily Imply that they 
are formed by and are fed from water from some higher point, and 
yet the line disregards the higher point and seeks the lower point 
and cuts the glacier throug-h from East to \^'est at right angles to Its 
trend. 

From peak ''4275", four and one-half miles It runs to "Mt. La 
Perouse 10758 '\ thence three and one-half miles to "^Nlt. Dagelet 



10 APPENDIX TO ARGUMENT OF UNITED STATES. 

9550 '\ thence four miles to "Mt. Cvillon l!>,T50'\ and thence twelve 
miles to '•Alt. Lituya 11,745". culminating- in ♦'Alt. Fairweather 
15.287 '\ in the next seven miles. 

From peak *' 1:275" to Mt. Fairweather it is drawn along the summits 
which mark the axis of the Fairweather range, whose trend is from 
Fairweather to Cape Spencer. 

Frbm Mt. Fairweather, it abandons the divide, leaving two summits 
"12,130" and ''11.800", only three and one-half and four miles to the 
North and East, descends the slope of the Fairweather range, crosses 
the unsurveyed area immediately East of the mouth of Dry Bay, at an 
unknown elevation and in twenty-two and one-half miles reaches 
peak "5350". 

From "5350" it descends 2.000 feet or more, in two and one-half 
miles, crosses the slope at a glacier and at a distance of six and one- 
half miles from "5350", crosses the Alsek River to a peak "37oo", 
thr(^e miles l)eyond. This peak appears to lie about three miles from 
the liead of Dry Bay. 

From peak "3700". it runs four miles to "3115'', thence two and 
one-half miles to "3500", thence two miles to "1050", where it turns 
at an angle of about 80 degrees, crossing the slope of a glacier to 
"1500" distance one and one-half miles, thence to peak "350(»" four 
miles, and thence to peak "113(»" distant three miles. 

The line runs from peak " 113< > " to " 351< » " distant six miles across the 
slope of a glacier. The last mentioned peak is about nine miles from 
the ocean. The divide in this locality between the Alsek River and 
the ocean appears to ))e al)out six miles northeasterly from the Brit- 
ish line at this point. 

From "3510" it runs to "3300". eight miles, four miles of which 
are across Yakutat Glacier near its foot. Thence in thirteen miles it 
goes to " 5()00 " and crosses the slopes of many glaciers in this region. 
Thence it runs two and one-half miles to Mt. Unana, over 6500 feet 
high, and drops down from this mountain, in three miles to Disen- 
chantment Bay, which is here about one and one-half miles wide. In 
so dropping it changes in a marked manner its bearing. 

Whereas the line was running rather North by West, it changes to 
just about due West, making- almost a right angle. What is there in 
the ti'taty (vhlch justijit^s tht'-s eidi'ddrdrnary and un usual departvref 

Disenchantment Bay at this place is about one and one-half miles 
wide. From here the line runs from " Mt. Tebenkof 1280" feet, 
thence to Mt. Hendrickson six miles 1550 feet, thence to a peak three 
miles distant " 1000 to 1250", thence four miles to Disenchantment Bay, 
which it again crosses, this time near its mouth where it is two and 
one-fourth miles wide: and thence to a peak "5000 to 5250", a total 
distance of about nine miles. 

From Mt. Tetienkof to the second crossing- of Disenchantment Bay, 
the mountains rise sheer from the ocean and form a peninsida which 
is quite detached from the St. Elias Alps. 

The line from the crossing- of the Alsek River to this point, 
has not followed the sunnuit of the mountains, for to the eastward of 
Disenchantment Bay lie very nnich higher mountains, whose peaks as 
far as surveyed, reach an altitude of over 8,00() feet and appear to 
form the watershed between the Alsek River and Disenchantment Bay. 

From peak "5250". the British line runs three miles to "G350", 
thence two and one-half miles to "0220", dropping- I.OOO feet in one 



APPENDIX TO ARGUMENT OE^ UNITED STATES. 11 

and one-half niile.s to one ot" the l)ranches of the Lucia (ilacier about a 
mile wide, thence rising- to peak •" o5U0 to 5750" in three miles more. 
This peak is on the slope of a spur from Mt. Cook, which is over 
13,000 feet high, seven miles north of it. From peak "5500-5750", 
it runs three miles across the Hayden Glacier to " 5*300 "', thence eight 
miles to "'8350". About six miles of this distance is across the 
Marvine and Pinnacle Pass Glaciers. 

From peak "8350" it runs three and one-half miles to " 5600", thence 
four miles across the Seward Glacier to *■ 5900", 'and thence seven 
miles to the ''summit of the mountain ridge northwest of Agassiz 
Glacier". 

Thence it proceeds seven miles to '•11,5(35 '', a "mountain peak one- 
half mile East of the lilst meridian"", which is one of the spurs of 
Mt. St. Elias which has an elevation of 18.000 feet, and distant three 
miles from it. 

The last of these peaks '"11,505" is the most remarkable selection, 
because within three miles of it and well within ten marine leagues of 
the coast (see B. C. App. page 285), stands Mt. St. Elias over 18,000 
feet high, which has ))een the landmark of the explorers and survey- 
ors from the earliest date. Yet Great Britain is undertaking, by 
drawing this line, to show that this peak ^Nlt. St. Elias is not a part of 
the crest which the Treaty intended. 

Beginning with peak "5500" the last thirt}' miles of this British 
line consists of seventeen miles of glacial ice lying at such an inclina- 
tion, Avith its source high up in the passes of the St. Elias Alps, and 
its mouth at the ocean, as to conform in no way to the Treaty. 

In addition to this minute description of the lino particular atten- 
tion is called to the following: 

I. 

From the point on the 50th Parallel to Mt. St. Elias, the line is 
about -11:0 miles long, and in this distance it crosses fourteen times, 
over thirteen ditt'erent arms of the sea, and of the total distance, thirty- 
four miles is at the water level. 

II. 

For over one hundred miles, in over forty insersecting transverse 
valleys, it lies less than lOOO feet high. 

III. 

From Holkham Bay it runs to a point on the continent, opposite the 
western end of Gastineau Channel. Between those two points the dis- 
tance is 46 miles and for this distance this line would leave the Hsiere 
a maximum width of al)out three miles. 

The second arm of the sea intersected by the line is Le Conte Ba}', 
(where the bay is less than one mile wide), on the line between the 
peak "5700" and peak "8600". The former on the south side is 
one of the highest points on an elongated mountain mass, whose axis 
lies at right angles to the trend of the coast and parallel with Le Conte 
Ba}' and Glacier. One and one-third miles along this axis is another 
peak of the same height, and six miles further in the same line is one 



12 APPENDIX TO ARGUMENT OF UNITED STATES. 

6nS0 feet in height. In followino- these .summits the line would not 
descend below 2500 feet, but the proposed line appears not to note that 
the elongated mountain masses, without exception, lie for the next 
twenty miles transverse to the line of the coast and all culminating in 
the great ice-covered plateau, which feeds the Great Glacier of the 
Stikin(\ the Le C'onte and the Patterson glaciers. The line, instead 
of maintaining a height of 250i> feet, descends to sea level. 

The fourth point, l^ort Houghton, where the line seeks salt water, 
is in latitude 57'-^*2U'. The inlet is here about a mile in width and 
is crossed by the line connecting peak "4052'" on the south side, 
Avith peak "4275'' on the north. Peak "4052'" and peak "4500- 
4750"" which are on the south of this inlet, are four miles apart and 
are two of hye peaks which rise over 4000 feet out of a mountain 
mass, al)out nine miles square, bounded l)y Port Houghton on the 
north and Faragut Bay and a stream emptying- into it on the south 
and east. The tsvo highest peaks of this s(iuare mountain mass were 
left to the east of the line and two are selected which happen to be 
in range with the peak "4275'' on the north of said inlet. 

This "4275" is in the axis of a mountain mass which follows closely 
the shore of Port Houghton and its principal tributaries. Directly 
east of the said peak and three miles away is peak " 5152". This peak, 
about 900 feet higher than either peak followed by the line and the 
highest one in the immediate yicinity, was on the same transverse 
mountain mass and could be crossed by the line with less disregard of 
the topography than the course adopted, for between this proposed 
peak "5152" and the next peak north, the line would descend only 
to a point )»elow 2,000 feet instead of descending as it does, to a point 
below 1,000 feet. 

IV. 

Peak "421J0" and peak "3110", three miles apart, seem to have been 
chosen for the line as detining the summit of the peninsula between 
Wyndham Bay and Holkham Bay. In making such a selection one 
must keep faced westward entirely, for if one would look inland, and 
just across Endicott Arm, he would see sununits tower from 1,0<)0 
to 2,000 feet above the selected peaks. 



In crossing the entrance of Holkham Bay, the line for the sixth 
time finds an expanse of sea. It is live miles in width on the N. N. W. 
line between peak "3110" just described, and "3100." the only 
peak selected on the peninsula between Holkham Bay and Port 
Snettisham. This whole peninsula can scarcely be called a moun- 
tain mass, fen- it barely reaches 3,000 feet at two points. And yet in 
its passage, the British line, from peak "3110" to peak "3100," eight- 
een and one-half miles is entirely below 3,000 feet, and is for four and 
one-half miles along the sea at Holkham Bay. It cuts an island (Har- 
bor Island in Holkham Bay) in two, and is for seven miles below 1,000 
feet, all in the face of the fact that within ten miles of this line inland 
there are at least hvc peaks over 5,000 feet in height, Avhich could with 
equal show of reason have been strung out into a line most certainly 
better complying with the terms of the Treaty. 



appp:ndix to argument of united states. 13 

VI. 

At Fort Snettisham the line for the seventh time crosses an arm of 
the sea which is one and one-half miles wide. The mountains on 
either side Avhich detine the direction of the crossino' are peak ''^lOo."" 
already described on the south side, and peak '' 37-1:8, "' a lonely summit 
bet.ween Port Snettisham and Limestorje Inlet. This mountain mass, 
rectangular in shape, has its elongation at right angles to the line. In 
the eli'ort to keep the line close to the coast, the high peaks which are 
in sight from peak ''8100'' in all directions are ignored, peak ''3748'' 
is selected, and the line crosses transversely this mountain to plunge 
ag-ain to sea level. 

VII. 

Limestone Inlet, the eighth arm of the sea, is crossed near its head 
on the line between " 3748 " described above, and peak " 3588 ''. This 
last peak is on the western or eastward end of a mountain mass along 
which, in less than two miles, stands peak ''3775''. This ridge also 
has no sign of elongation in direction of the line, and nothing Init its 
close proximitv to the coast can be a cause for its selection in prefer- 
ence to " 3775 " just northeast of it. 

VIII. 

The ninth crossing of the sea occurs in latitude 58^ 14' wdiere the 
line in going from peak "3000-3^50" to peak "3441", passes for 
two miles along Taku Inlet. This peak " 30OO-3'i5O,'' a mere spur, 
related as it is to the neighboring mountain masses, is a remarkable 
selection. To reach it from the next point of the line peak "3485". 
it was necessary to leave a transverse mountain mass, descend to below 
500 feet and ascend abruptly. In fact, all the mountain masses between 
Port Snettisham and Taku Inlet have been selected at almost right 
angles to the line, and yet the line, with the greatest of ease, but in 
entire disregard of the topographical facts, jumps from one ridge to 
the next, the intervening space descending to about sea level. 

In crossing Taku Inlet, the selection of peak "3441" seems reason- 
al)le. ]»ut the peak selected on the opposite side would seem to l)e the 
very last choice. Directly across the inlet from "3441" stand peaks 
"4625" and "4300" towering over lOOO feet al)ove the spur which was 
selected. 

IX. 

Where the line at the crossing of Lynn Canal takes an angle of 95 
degrees, it does not follow a general line of the coast, which Mr. King- 
speaks of as "the ruling X. N. W. of the coast", because it runs 
nearly West by South. In running West by South from peak '* 5:210". 
East of Lynn Canal, until it crosses Glacier Bay. it parallels Icy Strait, 
which Mr. King says 

"c'uti= in . . . at right angles to tlie vallfv of Cilatier Bay and the general trend 
of the mountains." 



14 APPENDIX TO ARGUMENT OF UNITED STATES. 

X. 

It' the crossing of Lynn Ctinal be applied to maps whieh were before 
the negotiators at hxtitude 58^ 43', it appears almost exactly fifty miles 
from the mountains which were intended bv the neo'otiators. 



EXTRACTS FROM VANCOUVER'S NARRATIVE, SHOWING HOW 
THE MOUNTAINS APPEARED AS SEEN FROM HIS VESSELS 
AND BOATS. 

(Edition of ISOl, in^six volumes.) 

(Volume 4.) 

Jaly 31. Betireeii Dwtdas Island and mainland. 
Page 117: " The more interior country was composed of a lofty range of mountains 
covered with perpetual snow." 

JuUi 23. In Observatory Inlet. 
Page 125: '"The interior country was, however, still composed of lofty, Ijarren, 
and snowy mountains." d 

July 24- In Observatory Inlet. 
Page 130: "The land of the shores which we liad thus traced, was, comparatively 
speaking, low, yet the interior country rose suddenly, and terminated our view l;)y a 
range of high barren mountains, mostly covered with snow." 

Jidy 28. In upper part Portland Channel. 
Page 138: "The shores of this inlet were nearly straight, and in general little 
more than a mile asunder, composed mostly of high rocky cliffs, covered with pine 
ti'ees to a considerable height; but the more ij^^erior country was a compact l)ody of 
high barren mountains covered with snow." 

Au(]ust 7. In Canal de RevUla Gigedo. 
Page 155: "The opposite, or western shore, particularly to the south of the Canal 
de Revilla Gigedo, seemed to be much broken. The shores in most directions were 
low, or of a moderate height; but the more interior country was composed of moun- 
tains covered with snow, not only in the eastern quarter, but to the northward and 
westward." 

Aurjvsi S. East of Camd de Eerilla Gigedo. 
Page 157: "The surrounding country consisted of a huge mass of steep, barren, 
rocky mountains, destitute of soil; whose summits were perpetually covered with 
snow. Excepting at the head of the arm where the land was low, these mountains 
rose in nearly perpendicular cliffs from the water's edge, producing only a few 
scattered dwarf trees." 

Page 160: Engraving of "The New Eddystone" in Behm's Canal, showing snow- 
covered mountains in background. 

August 9. East of "EddystoiW Eejck," Bheui Canal. 
Page 161: "The examination of this insignificant branch, winding l)etween an 
immense body of high, barren, snowy mountains, occupied the remainder of the 
day." 

August 10. General observation. 
Page 162: " Under these considerations, and well knowing from experience that 
all the small branches leading to the eastward either terminate at the foot of the 
lofty range of rugged mountains, or else form into islands parts of the shores of these 
inlets, 1 determined to decline their further examination," etc. 

August 20. Moira's Sound. 
Page 207: "The land in the neighborhood of Moira's sound is high, and rather 
steep to the sea; but as we advanced beyond Wedge island the straight and compact 
shores were more moderately elevated, and the interior country was composed of 
lofty, though uneven mountains, producing an almost imiyenetrable forest of pine 
trees from the water side nearly to their sununits, but by no means so high as those 
we had been accustomed to see in the more inland countries." 



APPENDIX TO ARGUMENT OE UNITED STATES. 15 

September ^9. Branch hetireen I'uhit Alexander and Point Hood. 
Page 241: "Both shores were nearly straight and rompact, and were about half a 
mile asunder as far as to this extent; l)Ut here they liecaine much broken, and the 
supposed continental shore, extending N. 20 E., formed a narrow arm about a league 
and a half lung, which was terminated in latitude 56° 47', longitude 227° 21', l)y 
shoal water, at the edge of a low plain producing very long grass, behind which rose 
lofty barren mountains covered with snow." 

September 7. Betireen Duke of York's i.-^land ((nd Binilui Iflnndit. 
Page 251: "The clearness of the weather gave us a very perfect view of the adja- 
cent shores bounding the horizon in every direction. To the westward the distant 
land was moderately elevated and apjieared to be similar to that we had genei'ally 
found along the sea coast; of an uneven surface and very much (livi<led by water." 

September 16.. AfflecVs Channel. 
Page 265: "The sides of this channel which, after Admiral Affleck, I named 
Affleck's Channel, were mountainous, but were not so steep as the shores of the more 
interior country. Its termination was formed by low, flat land covered with trees 
that seemed to extend without interruption as far as could be discerned in a XXW. 
direction, through which flat country several small streams of fresh water flowed 
into the channel." 

September 16. S<nin' nrigJiborliood. 
Page "^'^6: "The northernmost and southei'nmost (of these bays) have several rocks 
and islets about them, an<l the neighboring counti-y is moderately elevated, of an 
uneven surface, and is covered with dwarf pine and other trees." 

September 20. Xortlnrext extremitij <if Prinre of Wales ArfliipeUigo. 
Page 276: "This (Mount Calder) is conspicuous in many points of view, not from 
its superior elevation, when compared with the mountains I have had occasion to 
notice on the continent, but from its height above the rest of the country in its imme- 
diate vicinity, and from its being visible in various directions at a great distance." 

Vancouver's referexces to >rorNTAtxs and moi'xtain ranges seen alonc; the 

COAST IN jus VoVAGE IN THE YEAR 1794. 

From Munnt Si. EUax to Cross Sound. 
( N'olume 5. ) 

Page 348. Engraving of ]Mount .St. Elias and general view of the coast at that point. 

Page 350: "Eastward from the steep cliffs that terminate this l)ay, and from 
Avhence the ice descends into the sea, the coast is again com230sed of a si)acious mar- 
gin of low land, rising with a gradual and uniform ascent to the foot of the still con- 
nected chain of lofty mountains, whose summits are but the base from whence 
Blount St. Elias towers majestically conspicuous in regions of perpetual frost." 

Page 351: "A point which I named Point 3Ianby, and which I took to be the 
west point of what in ]\Ir. Dixon's chart is called Admiralty Bay, bore N. 39 E., 
di.-tant seven leagues; beyond which, high distant snowv mountains were seen 
stretching to N. 80 E." 

Page 353: "We bore away along the coast, which from port 3Iulgrave is com- 
posed of a low border, well wocxled, extending from the base of the mountains into 
the sea." 

Page 356: "\Ye had now an e.xtensive view of the seacoast, stretching by compass 
S. 77 \V. to X. 86 E., within which limits Mount St. Elias and .Mount Fairweather 
rose magnificently conspicuous from the still-continued range of lofty snow moun- 
tains. * * * In this situation .M(,)unt ,S7. AV/V'.s-, being the *'y.s^'r»»/fAN-Mand in sight, 
bore by compass X. 73 W.; Mount Fairweather was at this timeob.<cure<l by clouds." 

Page 357: "In consequence of which he (Captain Cook) was prevented noticing 
the extensive border of low land that stretches from the foot of the vast range of 
lofty mountains and forms the seashore. The irregularity of the base of these moun- 
tains, which retire in some places to a consideral)le distance, and especially in the 
part now alluded to, would, on a more remote view than we had taken, lead the 
most cautions observer to consider the appearances in the coast as indicating deep 
bays or openings likely to afford tolerable and even good shelter." 

Pages 358-359: "Where this low country wa-^ not intersected by the inland 
waters, it was tolerably well wooded; but as we advanced to the eastward this 
border became less extensive, was more elevated, and nmch less <'0vered with wood, 
and for a few miles totally destitute of either wood or verdure, and, like that part 

4574—03 15 



16 APPENDIX TO aiigump:nt of united states. 

before noticed between Point Riou and Point Manby, wai< composed of naked, rngged 
fra<rnients of rock>^ of varions njagnitndet^, lyinjf, as it were, in the front of Mount 
Fairweather, like those on the shore before Mount St. Elias. 

"The ))ase of this lofty ran,u;e of mountains now uradualiy approached the seaside, 
and to the soutlnvard of"C'ai)e Fairweather it may l)e said to be washed by the ocean; 
the interrui)tion in the summit of these very elevated mountains mentioned by 
Captain Cook was likewise conspicuously evident to us as we sailed along the coast 
this day, and lookeil like a plain composed of a solid mass of ice or frozen snow, 
inclining gradually towards the-low border, which, from the smoothness, uniformity, 
and clean ai>pearance of its surface, conveyed the idea of extensive waters having 
once existed beyond the then limits of our view, which had jjassed over this 
depressed part of the mountains, until their progress had l^een stopped by the 
severity of the climate, and that by the accumulation of succeeding snow freezing 
on this" ])ody of ice a l)arrier had become formed tliat had prevented such waters 
from flowing into the sea." 

Page :)l)0-361: "We were enabled to keei> witliin live miles of the coast, which was 
now again well wooded, and from Cape Fairweather took a direction S. 4.'] E.; it is 
steep and intire, with the exception of one small opening that had the appearance of 
being likely to afford shelter for shipping; but it is completely bounded at a little 
distance l)y steeii, compact mountains, which are a continuation of the same undivided 
range stretching to the eastward." 

Page 372: "The whole, ajtparently, was well wooded, and in two places it had the 
appearance of having small inlets at the back of the shoal; but the close-connected 
range of lofty, snowy mountains, running nearly jiarallel to the coast at no great dis- 
tance, plainly showed the limits of their extent", l)esi<le which there was no channel 
through the shoal by which they could have been approached." 

Page 385: "The shores were composed of a continuati(jn of the low border, extend- 
ing from the foot of the mountains to the seaside; they were nearly straight and 
compact and were bounded l)y ice or frozen snow, which also greatly abounded in 
the above opening, which obtained the name of Digges's Sound." 

Page 389: " Digges's Sound was the only place in the bay that presented the least 
prospect of anv interior navigation, and this was necessarily very limited, by the close 
connected ran'ge of lofty snowy mountains that stretched along the coast at no great 
distance from the seaside." 

Cross Sound and Lijnn Oirial. 

Page 421: "To the north and east of this point (Point Dundas) the shores of the 
continent form two large open bays, which were tenninated ))y compact solid moun- 
tains of ice, rising perpendiculaily from the water's edge, and bounded to the north 
by a continuation of the united "lofty frozen mountains that extend eastward from 
Mount Fairweather." 

Page 424: "Both sides of this arm ( Lynn Canal ) were hounded by lofty stupendous 
mountains, covered with perpetual ice and snow, whilst the shores in this neighbor- 
hood api)eared to be composed of cliffs of very tine slate, interspersed with beaches of 
excellent paving stone." 

Page 426: "Along the edge of this shoal the boats ])assed from side to side in six 
feet water, and beyond it the head of the arm extended about half a league, where 
a small opening in the land was'seen, about the fourth of a mile wide, leading to the 
northwestward, from whence a rapid stream of fresh water rushed ovei' the shoal; 
but this, to all a])pcarance, was bounded at no great distance by a continuation of the 
same loftv ridge of snowy mountains so repeatedly mentioned as stretching eastwardly 
from Mount Fairweather, and which, in every point of view they had hitherto l)een 
seen, appeared to be a firm and close-connected range of stui^endous mountains, for 
ever doomed to supi)ort a burthen of undissolving ice and snow." 

Page 427: "It may reasonal)ly be presumed that this stream is alone indelited for 
its existence to the (lissolution of the snow and ice in its vicinity at this season of the 
year; as it seemed to be too inconsiderable, and the adjacent n'lountains appeared to 
be too compact to admit of its deriving its source from any other cause." 

" But our party having a more important ol)jert to inirsne than that of receiving 
new visitors, declined the projiosed civility, and returned down the arm, along the 
eastern shore, which was low, indented into small bays and coves, and appeared to 
be a Iwrder tliat extended from the base of the mountains tliat lie behind it, and 
which took a direction S. 40 E., 4^ leagues to a point tliat obtained the name of Point 
Seduction." 

Page 428: "This branch, after winding in a westerly direction about three miles 
Surther, terminated this extensive arm in its northwesterly direction by low land 



APPENDIX TO ARGUMENT OF UNITED STATES. l7 

formed immediately at the foot of high stupendous mountains, broken into deep 
guHies, and loaded with perj^etual iee and snow." 

Page 429: "On this occasion it may not be improper to remark that the upper 
part of this arm, which, after the i)lace of my nativity, the town of Lynn, in 2sor- 
folk, ol)tained the name of Lynn Channel, ajiproaches nearer to those interior 
waters of the continent which are said to ))e known to the traders and travelers 
from the opposite side of America than we had found the waters of the North Pacific 
penetrate in any former instance. This approximation is towards the southwest side 
of the Arathapescow Lake, as laid down in Captain Cook's chart, from which its 
distance is about thi-ee hundred and twenty geographical miles; but frona the close 
connection and continuation of the lofty snowy barrier, so frecjuently before adverted 
to, trending southeastward and nearly parallel to the direction of tlie continental 
shore, little probability can remain of there being any navigable communication even 
for canoes between such waters and the North Pacific Ocean, without the interrup- 
tion of falls, cataracts, and various other impediments." 

Volume H. 

Below Li/nn Cunal. 

In Stepliens's Panmrfc. 
Page 20: "The opposite or northeast side of this northern branch is composed of 
a coitipact range of stupendous mountains, chiefly barren, and covered with ice and 
snow." 

Admirallij Inhl. 

Page 2-1:: " Whilst the shores of the continent, bounded by a continuation of those 
loft}' frozen momitains, which extend southeastward from Mount Fairweather, rose 
abrui^tly from the water side, and were covered with perpetual snow, whilst their 
sides were broken into deep ravines orvallies, tilled with immense mountains of ice." 

Of PouitSididiitni. 
Pages 26, 27: "From the shores of this l)asin a compact l:)odyof ice extended some 
distance nearly all roun<l; and the adjacent region was composed of a close connected 
continuation of the lofty range of frozen mountains, whose sides, almost perpendicu- 
lar, were formed entirely of rock, excejjting close to the water side, where a few 
scattered dwarf pine trees found sufficient soil to vegetate in; about these the moun- 
tains were wrapped in perpetual frost and snow. From the rugged gullies in their 
sides were projected immense bodies of ice, that reached perpendicularly to the sur- 
face of tfie water in the basin, which admitted of no landing place for the boats, but 
exhibited as dreary and inhospitable an aspect as the imagination can possibly sug- 
gest. * * ■ * xhe exan>iuatiou of this l)asin, etc. engaged the party until near 
noon of the 11th, when they returned along the eastei-n shore, which is a continua- 
tion of the same range of lofty mountains rising al)ruptly from the water side; by 
dark they reached the island mentioned on the 7tb. as lying in the middle of 
Stephens's passage. " 

Of Point Wnlpole. 
Page 30: "It is bounded by lofty mountains, and from their base extends a small 
border of low land forming the shores of the harl)our, which I called Port Houghton." 

/// Frederick Sound. 

Page 31: "When the weather became fair and clear, and shewed their situation 
to be before a small extent of low, fiat land, lying innnediately before the loftv 
mountains, which here rose al)ruptly to a i)rodigious height immediately l)ehind the 
border. A few miles to the south of this margin the mountains extended to the 
water side, where a part of them presented an uncommonly awful ajjpearance, rising 
R'ith an inclination towards the water to a vast height, loaded with an immense 
quantity of ice and snow, and overhanging their l)ase, which seemed to be insufficient 
to bear the jionderous fabric it sustained, and rendered the view of the passage 
beneath it horribly magnificent." 

Page 34: "Mr. >Vhidbey observes that in no one instance during his researches, 
either in the several l)ranches of I'rince Williams Sound, in those extending from 
Cross Sound, or in the course of his present excursion, did he find any immense 
bodies of ice on the islands; all those which he had seen on shore were in the gullies 
or valleys of the connected chain of lofty moim tains so freciuently mentioneii and 
which chiefly Constituted the continental shore from Cooks Inlet to this station, 
though in different jtlaces these mountains are at different distances from the seaside. 



18 APPENDIX TO ARGUMENT OF UNITED STATES. 

He likewise observes that all the islands, or groups of islands, were land of a mod- 
erate lieiaht when compared with the stiiiicnJuns motnitains that compose the conti- 
nental boundary, and were still seen to continue in a southeastern direction from 
this shallow passage, whilst the land to the westward assumed a more moderate 
height, was free fi'om snow, and produced a forest (jf lofty pine trees. These observa- 
tions more particularly applying to the former than to the suljsequent part of this 
survey, I have, for that reason, thought proper to introduce them in this place, and 
shall now resume the subject of Mr. Whidbey's excursion." 

Ill Frederick Sound. 
Page 45: "To the eastward Avere seen high, distant mountains covered with snow, 
but the land in their neighl)ourhood was, comparatively speaking, low, of a very 
uneven surface, much divided by water, and covered with wood." 

Off Point Macartnci/. 
Page 52: "Mr. Johnstone stated that the part of the coast that had claimed his 
attention during his last excursion is a peninsula, connected with the more eastern 
land by the last-mentioned narrow isthnuis, and that it is by no means so high or 
mountainous as the land composing the adjacent countries on the opposite or north- 
eastern side of the sound, which at no great distance consisted of very lofty, rugged, 
dreary, barren nujuntains, covered with ice and snow." 

MAPS AND CHARTS EXISTING PRIOR TO THE TRI^ATY OF 1825. 

From the cases uuide by the contestants it appears that the follow- 
ing- maps and charts of the region in cjiiestion were in existence when 
the treaty of Feb. 28, 1825, was signed. 

Map No. 1, American Appendix, by Arrowsmith, Jan. 1, 1795, xUlditions to.. 1796 
INIap No. 1, British Atlas. Vancouver General Map, N. W. Coast of America. 1798 
Map No. 2, British Atlas & No. 4 American Atlas, "Portland Canal &c." Van- 
couver 1798 

■Map No. o, British Atlas it No. 5 American Atlas, \'ancouver. "Lynn 

Canal, &c." 1798 

Map No. 5, British Atlas, No. (i, American Atlas, Quartermaster-General's 

Russian Map 1802 

^iap No. 2, American Ap])endix, "von Reichard," Weimar 1802 

Map No. 3, American Appendix, Reichard, Weimar 1803 

3Iap No. 7, British Atlas, Langsdorff 's :\Iap 18().>-1805 

Map No. 7, American Atlas, Walch's Map of North America, Augsburg 1807 

]Map No. 4, American Apjiendix, Gary's New Universal Atlas, London.-. 1808 

Map No. 5, American Appendix, Arrowsmith 1811 

Map No. 6, American Appendix Weimar Charte von Nord-America 1814 

3Iap No. 7, American Appendix Neele's General Atlas, London 1814 

^laj) No. 8, American Appendix, Arrowsmith 1814 

^lap No. 9, American Api)endix Thomson's New General Atlas, Edinburgh .. 1814 

Map No. 10, American Appendix, Brue's Grand Atlas, Paris 1816 

Map No. "8, American Atlas, Pinkerton's ^Modern Atlas "after Arrowsmith" . ISIS 

]Map No. 9, America Atlas, Brue's ]Ma]) of North America 1815 to 1819 

^Nlap No. 11, American Appendix, Arrowsmith : 1819 

Map No. 12, American Appendix. P>rue's Atlas 1819 

Ma}) No. 13, American Ap[)en(bx, New CJeneral Atlas, John Thompson, Kdin- 

burg 1821 

'Sldi> No. 8, British Atlas, Arrowsmith coloured 1822 

No. 9 of British Atlas, Arrowsmith uncoloured up to 1822 

No. 10 of Amerit'an Atlas. .Alap of America by A. Arrowsmith, Hydrog- 

rapher to His Majesty, London ". addition to 1823 

No. 10 of P>ritisli Atlas and No. 14 American Appendix, Faden's Map 1823 

No. 11 of British Atlas, Faden's Map 1824 



(") 



FEB 13 1904 



